Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement: (a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 this Transaction, is not effective within 185 days from the Trade Date of this Transaction.
Appears in 1 contract
Samples: Confirmation of Otc Transaction (Ixc Internet Services Inc)
Additional Termination Events. The following (i) 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 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 Events under Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 5(b)(v6(b) of the Agreement:.
(aii) (i) MLI is no longer ablePromptly following any repurchase and cancellation of Convertible Notes, or it becomes more costly, including without limitation pursuant to borrow (or maintain a borrowing of) Shares 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 TransactionConfirmation, 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 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 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 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, (ii2) MLI notifies Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of such inability or increased cost; and the Transaction were the sole Affected Transaction.
(iii) on or before Notwithstanding anything to the fifth 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 notice, Counterparty fails to provide, either directly or indirectly, for a loan to MLI of either Additional Termination Event (x) the Pledged Shares, pursuant to, and which Exchange Business Day shall in accordance with, the Securities Loan Agreement or (y) Shares (other no event be earlier than the Pledged Sharesrelated settlement date for such Convertible Notes) that are freely tradable in as an amount 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 Number lesser 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing ofA) 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 number of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of) Shares Options specified in connection with this Transaction.
(c) A registration statement, accompanied by Satisfactory Ancillary Documents, covering such Notice of Exercise [minus the delivery number of the Loaned Shares “Make-Whole Conversion Options” (as defined in the Securities Loan 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, for the avoidance of doubt, in determining the amount payable pursuant to Section 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 MLI Dealer to Counterparty shall not be greater than the product of (x) 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 market price per Share determined by the Calculation Agent in a 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 its hedging activities relating such delivery) a number of Shares equal to this Transaction(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 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 election that Counterparty is not effective within 185 days from in possession of any material non-public information regarding Counterparty or the Trade Date of this TransactionShares.
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Additional Termination Events. The following (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which Counterparty has delivered an Early Unwind Notice (as defined below):
(A) the giving of such Early Unwind Notice shall constitute an Additional Termination Events 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 5(b)(v9 and Section 10(b) of the Agreement:
(aExchange 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) MLI is no longer able, or it becomes more costly, with respect to borrow (or maintain a borrowing of) Shares which Counterparty has elected the “Exchange in connection with this Transaction, Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) MLI that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Counterparty 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 inability Affected Convertible Note, or increased cost(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, (B) the Transaction shall be the sole Affected 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) on or before Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may notify Dealer of such Repayment Event and the fifth 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 Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice and shall remake the representation set forth in Section 8(f) as of the date of such Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such notice, Counterparty fails Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to provide, either directly or indirectly, for the portion of the Transaction corresponding to a loan to MLI number of either Options (xthe “Repayment Options”) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal to the Number lesser of Shares(A) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, upon terms consistent with then-applicable law. In the event that such an agreement is executed divided by USD 1,000, and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing ofB) the Number of Shares.
(b) At any time after the loan Options as of the Pledged Shares date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by Counterparty the number of Repayment Options. Any payment hereunder with respect to MLI such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to the Securities Loan Agreement, Counterparty demands the return Section 6 of the Pledged Shares 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 Securities Loan Agreement andcorresponding Convertible Notes remain outstanding, at the time of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of5) 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 this Transaction, is not effective within 185 days from the Trade Date of this Transaction.the
Appears in 1 contract
Additional Termination Events. The following Notwithstanding anything to the contrary in this Confirmation:
(i) If an event of default with respect to Counterparty that results in an acceleration of the 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 Events under Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected 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 5(b)(v6(b) of the Agreement:.
(aii) Following any repurchase of Convertible Notes (i) MLI is no longer able, or it becomes more costly, whether pursuant to borrow (or maintain a borrowing of) Shares 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 in this TransactionSection 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 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 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, (ii2) MLI notifies Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of such inability or increased cost; and the Transaction were the sole Affected Transaction.
(iii) on or before The receipt by Dealer from Counterparty, within the fifth 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 noticeAdditional 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 fails were the sole Affected Party with respect to provide, either directly or indirectlysuch Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction (and, for a loan the avoidance of doubt, in determining the amount payable pursuant to MLI Section 6 of either 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 not be greater than the product of (x) the Pledged Shares, pursuant to, Applicable Percentage and in accordance with, the Securities Loan Agreement or (y) Shares the excess of (other than I) (1) the Pledged Sharesnumber of Make-Whole Conversion Options multiplied by (2) 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly Conversion Rate (and in its sole discretion) after taking into account any applicable adjustments to the costs incurred Conversion Rate pursuant to Section 14.03 of the Indenture) multiplied by MLI in borrowing (or maintaining 3) a borrowing ofprice per Share determined by the Calculation Agent over (II) the Number aggregate principal amount of such Convertible Notes, as determined by the Calculation Agent 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 Make-Whole Unwind Payment in Shares.
(b) At any , 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 the loan of the Pledged Shares such designation as determined 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, Dealer (taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or it is more costly, to borrow (or maintain a borrowing of) Shares settlement activity in connection with this Transactionsuch delivery) a number of Shares equal to such Make-Whole Unwind Payment divided by a price per Share determined by the Calculation Agent in good faith and in a commercially reasonable manner.
(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 this Transaction, is not effective within 185 days from the Trade Date of this Transaction.
Appears in 1 contract
Samples: Call Option Transaction (American Equity Investment Life Holding Co)
Additional Termination Events. The Each of the following shall will constitute an Additional Termination Events under Section 5(b)(v) of the AgreementEvent:
(a) (i) MLI Party A receives notice from the Credit Support Provider in respect of Party B that it intends 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, the Affected Party will be Party B.
(ii) At any 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 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 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 no longer ablebelow “A-“ and “A-1,” in the case of S&P, or it becomes more costlyis below “A3” and “P-1”, in the case of Moody’s, or ceases to be rated by Moody’s or S&P (a “Ratings Event”), 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 borrow 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 Non-Affected Party, the Debt Securities of which third party are rated “AA-” and “A-l” or above in the case of S&P and “Aa3” and “P-l” or above in the case of Moody’s, (B) to give notice of an Early Termination Date in respect of all Affected Transactions or maintain (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 borrowing ofwaiver thereof nor preclude any further exercise of such rights. The Affected Party will pay all reasonable costs (including all legal fees) Shares incurred by the Non-Affected Party in connection with this Transaction, (iiany transfer effected pursuant to Part 1(g)(ii)(A) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) 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 lawabove. 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 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 assign of such 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 an agreement is executed substitute agency and equivalent rating shall replace the Discontinued Agency and the Pledged Shares or such other Shares so borrowed, MLI shall adjust rating level thereof for the terms purposes of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of Shares.
(b) At Agreement. If at any time after the loan all of the Pledged Shares by Counterparty agencies specified herein with respect to MLI pursuant 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 applicable rating thereof, the Ratings Event provisions of this Part l(g)(ii) shall cease to apply 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 Transactionparties.
(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 this Transaction, is not effective within 185 days from the Trade Date of this Transaction.
Appears in 1 contract
Samples: Master Agreement (Access Integrated Technologies Inc)
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 Events under Section 5(b)(vEvent:
(A) Standard & Poor's Ratings Services, a division of the Agreement: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 the provisions of Part 1(i)(iii) of this Schedule.
(B) [RESERVED]
(ii) For purposes of the right to terminate under Section 6(b)(iv), Party A will be the sole Affected Party for any Additional Termination Events described 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) MLI is no longer able, or it becomes more costly, to borrow (or maintain above shall be the Reference Market-Maker's price for entering into a borrowing of) Shares Replacement Transaction with a creditworthy counterparty in connection with this which the Reference Market-Maker would take the side that Party B had taken in the Terminated Transaction, known as the "offered side". Party B agrees to give written notice to each of S&P (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of Shares.
(b) At long as 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 Certificates (as defined in the Securities Loan Pooling and Servicing Agreement) are deemed outstanding under the Pooling and Servicing Agreement and rated by MLI S&P) and Moody's (for so long as any Certificates are deemed outstanding under the Pooling and Servicing Agreement and rated by Moody's) in connection the event it declares an Additional Termination Event and designates an Early Termination Date in the event of a credit downgrade event with its hedging activities relating respect to this TransactionParty A as provided in subparagraph (i)(A) above.
(iii) In the event either S&P or Moody's rates the creditworthiness of Party A's unsecured and unsubordinated debt, is 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 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 effective made a Permitted Transfer of the Affected Transactions within 185 60 days from after the Trade Date occurrence of such credit downgrade event. Party A shall continue to post collateral following such 60 day period in accordance with the terms of this Transaction.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 following (i) Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty occurs that results in the acceleration of the 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 Events under Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 5(b)(v6(b) of the Agreement:.
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) MLI notifies 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 such inability or increased cost; (x) any Repurchase Notification, within the applicable time period set forth in the preceding sentence, and (iiiy) on a written representation and warranty by Counterparty that, as of the date of such Repurchase Notification, Counterparty is not in possession of any material non-public information regarding Counterparty or before the fifth Shares, shall constitute an Additional Termination Event as provided in this paragraph. Upon receipt of any such Repurchase Notification and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day following such notice, Counterparty fails to provide, either directly or indirectly, for a loan to MLI of either (x) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 this Transaction, is not effective within 185 days from the Trade Date of this Transaction.receipt
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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 under 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 5(b)(v6(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:
(a) (i) MLI if at any time Dealer is no longer ableunable, or reasonably determines that it becomes more costlyis inadvisable, to borrow 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 maintain a borrowing of) Shares in connection with this Transactionnot such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) MLI notifies Counterparty of such inability 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 increased costthe Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; and or
(iii) on or before if at any time Dealer receives a Par Value Notice, unless the fifth Exchange Business Day 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 noticeevent (a “Par Value ATE”); provided that, Counterparty fails notwithstanding anything to providethe contrary in the Agreement, either directly or indirectly, for Dealer shall designate an Early Termination Date in respect of a loan to MLI of either (x) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other Par Value ATE no later 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 anticipated record or such other Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 effective date 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 event specified in the Securities Loan Agreement) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date of this TransactionPar Value Notice.
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Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan AgreementIndenture) that is effective as to Counterparty has been delivered by MLI the relevant converting Holder:
(A) Counterparty may, within ten Scheduled Trading Days of the “Conversion Date” (as defined in connection 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 its hedging activities relating 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 (ii) 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 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 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this TransactionSection 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 such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain a written representation by Counterparty to Dealer that Counterparty is not effective within 185 days not, on the date of such Convertible Notes Repurchase Notice, in possession of any material nonpublic information with respect to Counterparty or the Shares. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event as provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, 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 Trade Date of this Transactionrelated repurchase settlement date for the relevant 13 Include in Additional Call Option Confirmation only.
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Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan AgreementIndenture) that is effective as to Counterparty has been delivered by MLI the relevant converting Holder:
(A) Counterparty may, within five Scheduled Trading Days of the “Conversion Date” (as defined in connection 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 its hedging activities 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 (ii) 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 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 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this TransactionSection 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 such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain a representation and warranty that Counterparty is not effective within 185 days 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 as provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, 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 Trade related repurchase settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of this Transactionthe 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 Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (y) the number of Repurchase Options (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]40, 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 Repurchase Options. Any payment hereunder with respect to such termination (the “Xxxxxxxxxx 00 Include in Additional Call Option Confirmation only. 40 Include in Additional Call Option Confirmation only.
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Additional Termination Events. The 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 Events under Section 5(b)(v) of the AgreementEvent with Party A as sole Affected Party:
(a) (i) MLI An S&P Collateralization Event has occurred and is no longer able, continuing and Party A has failed to comply with or it becomes more costly, perform any obligation to borrow (be complied with or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and performed by Party A in accordance with, with the Securities Loan Agreement or (y"Downgrade Provisions" as set forth in Part 5(b)(2) Shares (other than the Pledged Sharesand a Ratings Event has neither occurred nor is continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(a) that are freely tradable in shall not constitute an amount equal to the Number Event 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of SharesDefault.
(b) At 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 after the loan 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 constitute an Event of the Pledged Shares by Counterparty Default (unless such event constitutes a failure to MLI post collateral pursuant to the Securities Loan Agreement, Counterparty demands the return terms of the Pledged Shares pursuant to the Securities Loan Agreement and, at the time Credit Support Annex in breach of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of) Shares in connection with this TransactionPart 5(b)(4)).
(c) A registration statement, accompanied 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 Satisfactory Ancillary Documents, covering Party A in accordance with the delivery "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 Loaned Shares 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, dated as of 1 January, 2007, 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 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 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 Section 6(b)(iv) of this Agreement, either party may designate an Early Termination Date in respect of this Additional Termination Event.
(iv) Upon the occurrence of a 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 Securities Loan Agreementprovisions set forth in Part 5(u)(iii) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date below. For all purposes of this TransactionAgreement, Party A shall be the sole Affected Party with respect to the occurrence of an Additional Termination Event described in this 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 following shall constitute Additional Termination Events under Section 5(b)(v(i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the Agreementrelevant converting Holder:
(aA) Counterparty shall, within three Scheduled Trading Days of the 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) MLI with respect to which Counterparty has made an “Exchange Election” (as such term is no longer able, or it becomes more costly, defined in the Indenture) pursuant to borrow (or maintain a borrowing of) Shares in connection with this Transaction, Section [14.12]41 of the Indenture and (ii) MLI 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 Counterparty 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 inability Affected Convertible Note, or increased cost; and (iiiy) on or before such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the fifth 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 notice, Early Conversion and (y) the date on which Counterparty fails provides the written notice described in Section 9(i)(i)(A) above) with respect to provide, either directly or indirectly, for the portion of the Transaction corresponding to a loan number of Options (the “Affected Number of Options”) equal to MLI the lesser of either (x) the Pledged Shares, pursuant to, and in accordance with, number of Affected Convertible Notes [minus the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal to the “Affected 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 Options” (as defined in the Securities Loan AgreementBase 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 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 MLI (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 connection with its hedging activities relating the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to this Transaction, the “Holder” (as such term is not effective within 185 days from defined in the Trade Date Indenture) of this Transactionan Affected Convertible Note upon conversion of such Affected Convertible Note (including for such purposes taking into account any applicable adjustments to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [14.03]45 of the 40 Insert for Additional Call Option Confirmation. 41 Include cross-reference to 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 Conversion Rate.
Appears in 1 contract
Additional Termination Events. The 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 Events under Section 5(b)(v) of the AgreementEvent with Party A as sole Affected Party:
(a) (i) MLI An S&P Collateralization Event has occurred and is no longer able, continuing and Party A has failed to comply with or it becomes more costly, perform any obligation to borrow (be complied with or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and performed by Party A in accordance with, with the Securities Loan Agreement or "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)(a) shall not constitute an Event of Default (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal to the Number unless such event constitutes a breach 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of SharesPart 5(b)(4)).
(b) At 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 after the loan of the Pledged Shares by Counterparty to MLI that no Moody's Ratings Event had occurred and was continuing. Any event which constitutes an Additional Termination Event pursuant to the Securities Loan Agreement, Counterparty demands the return this Section 1(h)(i)(b) shall not constitute an Event of the Pledged Shares pursuant to the Securities Loan Agreement and, at the time Default (unless such event constitutes breach of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of) Shares in connection with this TransactionPart 5(b)(4)).
(c) A registration statement, accompanied 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 Satisfactory Ancillary Documents, covering Party A in accordance with the delivery "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) 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 (other than the obligation to post collateral pursuant to the terms of the Loaned Shares 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 Series Supplement dated as defined 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 document is amended or modified (other than an amendment or modification solely to accommodate replacement agents to the 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 Securities Loan Agreement) by MLI in connection with its hedging activities relating to this TransactionCredit Support Annex and each Confirmation, is not effective within 185 days from "Trustee" shall mean the Trade Date of this Transactiontrustee for the Supplemental Interest Trust Trustee under the PSA.
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Additional Termination Events. The 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 Events under Section 5(b)(v) of the AgreementEvent with Party A as sole Affected Party:
(a) (i) MLI An S&P Collateralization Event has occurred and is no longer able, continuing and Party A has failed to comply with or it becomes more costly, perform any obligation to borrow (be complied with or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and performed by Party A in accordance with, with the Securities Loan Agreement or (y"Downgrade Provisions" as set forth in Part 5(b)(2) Shares (other than the Pledged Sharesand a Ratings Event has neither occurred nor is continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(a) that are freely tradable in shall not constitute an amount equal to the Number Event 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of SharesDefault.
(b) At 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 after the loan 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 constitute an Event of the Pledged Shares by Counterparty Default (unless such event constitutes a failure to MLI post collateral pursuant to the Securities Loan Agreement, Counterparty demands the return terms of the Pledged Shares pursuant to the Securities Loan Agreement and, at the time Credit Support Annex in breach of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of) Shares in connection with this TransactionPart 5(b)(4)).
(c) A registration statement, accompanied 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 Satisfactory Ancillary Documents, covering Party A in accordance with the delivery "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 Loaned Shares 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 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 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 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 Section 6(b)(iv) of this Agreement, either party may designate an Early Termination Date in respect of this Additional Termination Event.
(iv) Upon the occurrence of a 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 Securities Loan Agreementprovisions set forth in Part 5(v)(iii) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date below. For all purposes of this TransactionAgreement, Party A shall be the sole Affected Party with respect to the occurrence of an Additional Termination Event described in this Part 1(h)(iv).
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Samples: Swap Schedule (Credit Suisse First Boston Mortgage Securities Corp)
Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan 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 “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 (ii) 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 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 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 such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase 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 Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event as provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, 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 related repurchase settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the 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 such Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (y) 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 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 (the “Repurchase 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 Repurchase 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 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 MLI Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in connection with exchange for delivery of any property or assets of Counterparty or any of its hedging activities relating subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to this Transactionthe final maturity date of the Convertible Notes (other than upon acceleration of the Convertible Notes described in Section 9(h)(iii)), is or (iv) any Convertible Notes are exchanged by or for the benefit of the Holders (as defined in the Indenture) thereof for any other securities of Counterparty or any of its Affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction; provided that any conversion of Convertible Notes pursuant to the terms of the Indenture shall not effective within 185 days from the Trade Date of this Transactionconstitute a Repurchase Event.
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Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan 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 “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 (ii) 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 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 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 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 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 as provided in this Section 9(i)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, 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 related repurchase settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the 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 such Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (y) the number of Repurchase Options (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]16, 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 Repurchase Options. Any payment hereunder with respect to such termination (the “Repurchase 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 Repurchase 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 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 MLI Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in connection with exchange for delivery of any property or assets of Counterparty or any of its hedging activities relating subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to this Transactionthe final maturity date of the Convertible Notes (other than upon acceleration of the Convertible Notes described in Section 9(i)(iii)), is or (iv) any Convertible Notes are exchanged by or for the benefit of the Holders (as defined in the Indenture) thereof for any other securities of Counterparty or any of its Affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction; provided that any conversion of Convertible Notes pursuant to the terms of the Indenture shall not effective within 185 days from the Trade Date of this Transactionconstitute a Repurchase Event.
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Additional Termination Events. The occurrence of any of the following shall constitute an Additional Termination Events under Section 5(b)(vEvent 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 Agreementfollowing Additional Termination Events, Bank may choose to treat part of the Transaction as the sole Affected Transaction, and, upon termination of 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:
(a) (i) MLI if at any time (x) Bank is no longer ableunable, or reasonably determines that it becomes more costlyis inadvisable, based upon the advice of counsel, to borrow hedge its obligations pursuant to the Transaction in the public market without registration under the Securities Act as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures applicable to it (whether or maintain not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Bank); or (y) Bank determines in its reasonable discretion that Bank or its affiliates would incur a borrowing ofmaterially 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 connection 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 Transaction, sub-clause (y);
(ii) MLI notifies Counterparty the consummation of such inability any transaction (including, without limitation, any merger or increased cost; consolidation) the result of which is that any “person” becomes the “beneficial owner” (as these terms are defined in Rule 13d-3 and (iii) on or before Rule 13d-5 under the fifth Exchange Business Day following such noticeAct), Counterparty fails to provide, either directly or indirectly, for of more than 50% of Counterparty’s capital stock that is at the time entitled to vote by the holder thereof in the election of Counterparty’s board of directors (or comparable body);
(iii) the consolidation or merger of Counterparty with or into any 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 loan series of related transactions, of all or substantially all of Counterparty’s assets and those of Counterparty’s subsidiaries taken as a whole to MLI any “person” (as this term is used in Section 13(d)(3) of either the Exchange Act), other than (x) any transaction that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Counterparty’s capital stock; and pursuant to which the Pledged Sharesholders of 50% or more of the 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 right to exercise, pursuant todirectly or indirectly, and 50% or more of the total voting power of all shares of Counterparty’s capital stock entitled to vote generally in accordance with, elections of directors of the Securities Loan Agreement 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 solely into shares of common stock of the surviving entity;
(other than iv) the Pledged Sharesfirst day on which a majority of the members of board of directors of Counterparty are not “continuing directors”. “Continuing directors” means, as of any date of determination, any member of board of directors of Counterparty who (x) that are freely tradable in an amount equal was a member of the board of directors on the Trade Date; or (y) was nominated for election or elected to the Number board of Shares, upon terms consistent directors with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms approval of this Transaction accordingly (and in 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 majority of the Pledged Shares by Counterparty to MLI pursuant to the Securities Loan Agreement, Counterparty demands the return continuing directors who were members of the Pledged Shares pursuant to the Securities Loan Agreement and, board at the time of such demand, MLI is not able, new director’s nomination 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 this Transaction, is not effective within 185 days from the Trade Date of this Transaction.election;
Appears in 1 contract
Samples: Warrant Transaction Confirmation (Covanta Holding Corp)
Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v(i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the Agreementrelevant converting Holder:
(aA) Counterparty shall, within seven Scheduled Trading Days of the 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) MLI Counterparty is no longer ablenot, on the date of the Early Conversion Notice, in possession of any material non-public information with respect to Counterparty or it becomes more costly, to borrow (the Shares or maintain a borrowing of) Shares in connection with this Transaction, (ii) MLI 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 Counterparty 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 inability Affected Convertible Note, or increased cost(y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Supplemental Indenture; and 36 Include in Additional Call Option Confirmation only.
(iiiB) on or before the fifth 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 notice, Early Conversion and (y) the date on which Counterparty fails provides the written notice described in Section 9(i)(i)(A) above) with respect to provide, either directly or indirectly, for the portion of the Transaction corresponding to a loan number of Options (the “Affected Number of Options”) equal to MLI the lesser of either (x) the Pledged Shares, pursuant to, and in accordance with, number of Affected Convertible Notes [minus the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal to the “Affected 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 Options” (as defined in the Securities Loan 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 MLI 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, (B) the Transaction shall be the sole Affected 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 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 its hedging activities relating 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 Counterparty or the Shares or (ii) such election to deliver a Repayment Notice 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. [Any Repayment Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation]40. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 9(i)(iii). Upon receipt of any such Repayment Notice, 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 later of (x) the related repurchase settlement date for the relevant Repayment Event and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(iii)) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) 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) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate 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 date, 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 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. “Repayment Event” means that (i) any Convertible Notes are repurchased or redeemed (whether in 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 other reason) 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 40 Include for Additional Call Option Confirmation. 41 Include for Additional Call Option Confirmation. described), (iii) any principal of any of the Convertible Notes 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 Supplemental 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 Notwithstanding anything to the contrary in the Equity 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, is not effective within 185 days from Counterparty being the Trade sole Affected Party and Dealer being the party entitled to designate an Early Termination Date pursuant to Section 6(h) of this Transactionthe Agreement) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transactions.
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Additional Termination Events. The occurrence of the following shall constitute an Additional Termination Events Event under Section 5(b)(v) of the Agreement:.
(i) The occurrence of an Optional Termination under Section 10.01 of the Pooling and Servicing Agreement. Notwithstanding anything to the contrary in the Agreement, 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; (ib) MLI is no longer able, accelerate or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this postpone the scheduled date of any payment under the Transaction, (iic) MLI notifies Counterparty affect the calculation of such inability 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 increased cost; and (e) modify any of the definitions in any of the Transaction Documents which would have the affect of any of the foregoing.
(iii) on or before 30 days following a Downgrade Event if Party A has not taken action that prevents the fifth Exchange Business Day following downgrading of the Class 6 A-3 Floating Rate Certificates below the rating of such noticeCertificates by Xxxxx'x Investors Service, Counterparty fails to provide, either directly or indirectly, for a loan to MLI of either Inc. (x"Moody's") the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal immediately prior 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of SharesDowngrade Event.
(biv) At any time after A payment default on the loan Class 6 A-3 REMIC Certificates that is caused by the failure of the Pledged Shares by Counterparty to MLI pursuant a party to the Securities Loan AgreementPooling and Servicing Agreement to make a payment when due, Counterparty demands provided that any cure period for such default provided in the return of the Pledged Shares pursuant to the Securities Loan Pooling and Servicing 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 Transactionhas expired.
(cv) A registration statement, accompanied by Satisfactory Ancillary Documents, covering the delivery The termination or dissolution of the Loaned Shares (as defined in Trust for any reason whatsoever, including a termination pursuant to Section 9.01 of the Securities Loan Grantor Trust Agreement) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date of this Transaction.
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Samples: Isda Master Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan 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 “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 (ii) 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 MLI 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, (B) the Transaction shall be the sole Affected 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), 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 Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice. Any Repayment Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, 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 related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) 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) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate 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 date, 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 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. “Repayment Event” means that (i) any Convertible Notes are repurchased or redeemed (whether in connection with or as a result of a fundamental change, howsoever defined, or for any other reason) by Counterparty or any of its hedging activities relating subsidiaries, (ii) any Convertible Notes are delivered to this TransactionCounterparty 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 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 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 avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture shall not effective within 185 days from the Trade Date of this Transactionconstitute a Repayment Event.
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Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v(i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of Conversion” (as such term is defined in the AgreementIndenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(aA) Counterparty may, at its option, within five Scheduled Trading Days of the 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) MLI is no longer able, or it becomes more costly, with respect to borrow (or maintain a borrowing of) Shares which Counterparty has elected the “Exchange in connection with this Transaction, Lieu of Conversion” option pursuant to Section [14.02(j)] of the Indenture and (ii) MLI 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 Counterparty 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 inability Affected Convertible Note, or increased cost; and (iiiy) on or before such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the fifth 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 notice, Early Conversion and (y) the date on which Counterparty fails provides the written notice described in Section 9(j)(i)(A) above) with respect to provide, either directly or indirectly, for the portion of the Transaction corresponding to a loan number of Options (the “Affected Number of Options”) equal to MLI the lesser of either (x) the Pledged Shares, pursuant to, and in accordance with, number of Affected Convertible Notes [minus the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal to the “Affected 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 Options” (as defined in the Securities Loan 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 MLI 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 connection 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, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement.
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty (1) shall (solely to the extent that such Repayment Event results directly from a “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 hedging activities relating option, notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to this Transactionsuch Repayment Event (any such notice, is not effective within 185 days from a “Repayment Notice”); provided that in the Trade Date case of this Transactionclause (2) only, 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 Indenture section containing events of default.
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Additional Termination Events. The following (i) 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 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 Events under Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 5(b)(v6(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 (ib) MLI 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 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 longer ableevent shall be earlier than 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 “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), or it becomes more costlyif any, that relate to borrow such Convertible Notes] and (or maintain 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 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 borrowing ofTransaction 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 and (3) 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 TransactionSection 9(i)(iii). Upon receipt of any such Notice of Exercise, (ii) MLI notifies Counterparty of such inability or increased cost; and (iii) on or before the fifth Dealer shall designate an Exchange Business Day following such notice, Counterparty fails to provide, either directly or indirectly, for a loan to MLI of either Additional Termination Event (x) the Pledged Shares, pursuant to, and which Exchange Business Day shall in accordance with, the Securities Loan Agreement or (y) Shares (other no event be earlier than the Pledged Sharesrelated settlement date for such Convertible Notes) that are freely tradable in as an amount 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 Number lesser 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing ofA) 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 number of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of) Shares Options specified in connection with this Transaction.
(c) A registration statement, accompanied by Satisfactory Ancillary Documents, covering such Notice of Exercise [minus the delivery number of the Loaned Shares “Make-Whole Conversion Options” (as defined in the Securities Loan 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, for the avoidance of doubt, in determining the amount payable pursuant to Section 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 Make-Whole Unwind Payment shall not be greater than the product of (x) the Applicable Percentage and (y) the excess of (I) (1) the number of Make-Whole Conversion Options, multiplied by MLI (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 market price per Share determined by the Calculation Agent in a 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 its hedging activities relating such delivery) a number of Shares equal to this Transaction(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, 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 date of such election that Counterparty is not effective within 185 days from in possession of any material non-public information regarding Counterparty or the Trade Date of this TransactionShares.
Appears in 1 contract
Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan AgreementIndenture) that is effective as to Counterparty has been delivered by MLI the relevant converting Holder:
(A) Counterparty shall, within five Scheduled Trading Days of the “Conversion Date” (as defined in connection 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 its hedging activities relating respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) 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 TransactionSection 10(i)(C) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, is 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 effective within 185 days from occurred, (y) no adjustments to the Trade 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 TransactionConfirmation 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, (B) the Transaction shall be the sole Affected 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), 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 Exchange Act and the rules and
Appears in 1 contract
Additional Termination Events. The 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 Events under Section 5(b)(v) of the AgreementEvent with Party A as sole Affected Party:
(a) (i) MLI An S&P Collateralization Event has occurred and is no longer able, continuing and Party A has failed to comply with or it becomes more costly, perform any obligation to borrow (be complied with or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and performed by Party A in accordance with, with the Securities Loan Agreement or (y"Downgrade Provisions" as set forth in Part 5(b)(2) Shares (other than the Pledged Sharesand a Ratings Event has neither occurred nor is continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(a) that are freely tradable in shall not constitute an amount equal to the Number Event 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of SharesDefault.
(b) At 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 after the loan 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 constitute an Event of the Pledged Shares by Counterparty Default (unless such event constitutes a failure to MLI post collateral pursuant to the Securities Loan Agreement, Counterparty demands the return terms of the Pledged Shares pursuant to the Securities Loan Agreement and, at the time Credit Support Annex in breach of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of) Shares in connection with this TransactionPart 5(b)(4)).
(c) A registration statement, accompanied 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 Satisfactory Ancillary Documents, covering Party A in accordance with the delivery "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 Loaned Shares 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 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 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 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 Section 6(b)(iv) of this Agreement, either party may designate an Early Termination Date in respect of this Additional Termination Event.
(iv) Upon the occurrence of a 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 Securities Loan Agreementprovisions set forth in Part 5(v)(iii) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date below. For all purposes of this TransactionAgreement, Party A shall be the sole Affected Party with respect to the occurrence of an Additional Termination Event described in this Part 1(h)(iv).
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Additional Termination Events. The 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 Events under Section 5(b)(v) of the AgreementEvent with Party A as sole Affected Party:
(a) (i) MLI An S&P Collateralization Event has occurred and is no longer able, continuing and Party A has failed to comply with or it becomes more costly, perform any obligation to borrow (be complied with or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and performed by Party A in accordance with, with the Securities Loan Agreement or (y"Downgrade Provisions" as set forth in Part 5(b)(2) Shares (other than the Pledged Sharesand a Ratings Event has neither occurred nor is continuing. Any event which constitutes an Additional Termination Event pursuant to this Section 1(h)(i)(a) that are freely tradable in shall not constitute an amount equal to the Number Event 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of SharesDefault.
(b) At 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 after the loan 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 constitute an Event of the Pledged Shares by Counterparty Default (unless such event constitutes a failure to MLI post collateral pursuant to the Securities Loan Agreement, Counterparty demands the return terms of the Pledged Shares pursuant to the Securities Loan Agreement and, at the time Credit Support Annex in breach of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of) Shares in connection with this TransactionPart 5(b)(4)).
(c) A registration statement, accompanied 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 Satisfactory Ancillary Documents, covering Party A in accordance with the delivery "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 Loaned Shares 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 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 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 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 Section 6(b)(iv) of this Agreement, either party may designate an Early Termination Date in respect of this Additional Termination Event.
(iv) Upon the occurrence of a 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 Securities Loan Agreementprovisions set forth in Part 5(v)(iii) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date below. For all purposes of this TransactionAgreement, Party A shall be the sole Affected Party with respect to the occurrence of an Additional Termination Event described in this Part 1(h)(iv).
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Additional Termination Events. The following (i) Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty occurs that results in the acceleration of the 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 Events under Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 5(b)(v6(b) of the Agreement:.
(aii) Promptly (and in any event within five Scheduled Trading Days) following (i) MLI is no longer ableany repurchase (which, or it becomes more costlyfor the avoidance of doubt, includes any exchange transaction) of Convertible Notes, including without limitation pursuant to borrow (or maintain a borrowing of) Shares Article 15 of the Indenture in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 “Fundamental Change” (as defined in the Securities Loan 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 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 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 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 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, 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 related repurchase settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to 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]20 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 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 Event, (3) no adjustment to the “Conversion Rate” (as defined in the Indenture) 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.
(iii) Notwithstanding anything to the contrary in the Equity 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 being the party entitled to designate an Early Termination Date pursuant to Section 6(h) of the Agreement) by MLI shall be deemed to occur, and, in connection with its hedging activities relating lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to this Transaction, is not effective within 185 days from the Trade Date of this such Affected Transaction.
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Samples: Call Option Transaction (Ionis Pharmaceuticals Inc)
Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan AgreementIndenture) that is effective as to Counterparty has been delivered by MLI the relevant converting Holder:
(A) Counterparty shall, within ten Scheduled Trading Days of the “Conversion Date” (as defined in connection 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 its hedging activities relating respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) 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 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 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this TransactionSection 9(h)(i) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, is 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 effective within 185 days 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 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 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 as provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, 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 Trade related repurchase settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of this Transaction.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 such Convertible Notes Repurchase Notice, divided by USD 1,000, 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 Repurchase Options. Any payment hereunder with respect to such termination (the “Repurchase 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 Repurchase 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 remaining outstanding, (5) the relevant
Appears in 1 contract
Additional Termination Events. The following (i) Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty occurs that results in the acceleration of the 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 Events under Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 5(b)(v6(b) of the Agreement:
. 10 To be included for broker-dealer. 25 (aii) Promptly (and in any event within five Scheduled Trading Days) following (i) MLI is no longer ableany repurchase (which, or it becomes more costlyfor the avoidance of doubt, includes any exchange transaction) of Convertible Notes, including without limitation pursuant to borrow (or maintain a borrowing of) Shares Article 15 of the Indenture in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 “Fundamental Change” (as defined in the Securities Loan AgreementIndenture), 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 such Repurchase Event (any such notice, a “Repurchase Notice”). Notwithstanding anything to the contrary in this Confirmation, the receipt by MLI Dealer from Counterparty of (x) any Repurchase Notice, within the applicable time period set forth in connection 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 in this paragraph. 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 Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant Repurchase Event) as an Early Termination Date with its hedging activities relating respect to 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 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 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 TransactionTransaction and a Number of Options equal to the number of Repurchase Options, is (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no adjustment to the “Conversion Rate” (as defined in the Indenture) 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 effective within 185 days from occurred, (5) the Trade Date relevant Repurchase Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of this 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 Events under Section 5(b)(v) of Event with respect to Counterparty (which shall be the Agreement:sole Affected Party and this Transaction shall be the sole Affected Transaction):
(a) An Amendment Event occurs, in which case the entirety of this Transaction shall be subject to termination.
(ib) MLI is no longer ableA Repayment Event occurs, or it becomes more costly, in which case this Transaction shall be subject to borrow (or maintain a borrowing of) Shares termination only in respect of the principal amount of Reference Notes that cease to be outstanding in connection with this Transaction, (ii) MLI notifies Counterparty or as a result of such inability or increased cost; and Repayment Event (iii) on or before the fifth Exchange Business Day following such notice, Counterparty fails to provide, either directly or indirectlyand, for a loan the avoidance of doubt, if the principal amount of Reference Notes that cease to MLI of either (x) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other be outstanding is less than the Pledged Shares) that are freely tradable in an total principal amount equal to the Number outstanding of SharesReference Notes, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust then the terms of this Transaction accordingly (shall continue to apply, subject to the terms and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of Sharesconditions set forth herein).
(bc) At The transactions contemplated by the Underwriting Agreement shall fail to close as a result of any breach by Counterparty of its obligations thereunder, in which case the entirety of this Transaction shall terminate automatically.
(d) If at any time after the loan all, or any portion, of the Pledged Shares by Counterparty 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 MLI pursuant market conditions, illiquidity, illegality, lack of availability of market participants or otherwise, to establish, re-establish, unwind or maintain any hedging transaction necessary or desirable in the normal course of Deutsche’s business of hedging the price and market risk of entering into and performing under this Transaction, in which case the entirety of this Transaction shall be subject to termination. Notwithstanding anything to the Securities Loan Agreementcontrary in the Agreement or the Definitions, Counterparty demands the return may require, by written notice to Deutsche, any amount owed by Deutsche to Counterparty in connection with termination of the Pledged Shares pursuant Transaction to be paid in the Securities Loan Agreement andtype of securities, property or other assets into which (or for which) the Reference Notes are convertible (or exchangeable) at the time of such demandtermination (the value of such securities, MLI property or other assets to be based on their fair market value on the date the Transaction is not able, or it is more costly, terminated as determined by the Calculation Agent in good faith and in a commercially reasonable manner). In addition if the transactions contemplated by the Underwriting Agreement shall fail to borrow (or maintain a borrowing of) Shares close for any reason other than those set forth in connection with this Transaction.
clause (c) A registration statementabove, accompanied by Satisfactory Ancillary Documents, covering then the delivery of the Loaned Shares (as defined in the Securities Loan Agreement) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date entirety of this Transaction.Transaction shall terminate automatically and no payments or deliveries shall be required hereunder. As used in this Confirmation:
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Samples: Confirmation (Cephalon Inc)
Additional Termination Events. The occurrence of the following shall constitute an Additional Termination Events Event under Section 5(b)(v) of the Agreement:.
(i) The occurrence of an Optional Termination under Section 10.01 of the Pooling and Servicing Agreement. Notwithstanding anything to the contrary in the Agreement, 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; (ib) MLI is no longer able, accelerate or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this postpone the scheduled date of any payment under the Transaction, (iic) MLI notifies Counterparty affect the calculation of such inability 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 increased cost; and (e) modify any of the definitions in any of the Transaction Documents which would have the affect of any of the foregoing.
(iii) on or before 30 days following a Downgrade Event if Party A has not taken action that prevents the fifth Exchange Business Day following downgrading of the Class 5 A-3 Floating Rate Certificates below the rating of such noticeCertificates by Xxxxx'x Investors Service, Counterparty fails to provide, either directly or indirectly, for a loan to MLI of either Inc. (x"Moody's") the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal immediately prior 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of SharesDowngrade Event.
(biv) At any time after A payment default on the loan Class 5 A-3 REMIC Certificates that is caused by the failure of the Pledged Shares by Counterparty to MLI pursuant a party to the Securities Loan AgreementPooling and Servicing Agreement to make a payment when due, Counterparty demands provided that any cure period for such default provided in the return of the Pledged Shares pursuant to the Securities Loan Pooling and Servicing 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 Transactionhas expired.
(cv) A registration statement, accompanied by Satisfactory Ancillary Documents, covering the delivery The termination or dissolution of the Loaned Shares (as defined in Trust for any reason whatsoever, including a termination pursuant to Section 9.01 of the Securities Loan Grantor Trust Agreement) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date of this Transaction.
Appears in 1 contract
Samples: Isda Master Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Additional Termination Events. The following shall constitute be Additional Termination Events with respect to which Counterparty is the sole Affected Party and (subject to the proviso in clause (ii), (iv) and (v) below and Section 3(g)(vii) below) all Transactions under Section 5(b)(v) of the Agreementthis Master Confirmation shall be Affected Transactions:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) Dealer shall have received any notice from Counterparty with respect to a proposed amendment, modification, restatement, supplement, waiver or change to the Pledged SharesAmended and Restated Limited Liability Company Agreement of the Units Issuer, pursuant todated as of May 18, and in accordance with2016 (as amended, modified or supplemented from time to time, the Securities Loan Agreement “LLC Agreement”) or (y) 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 Existing Investment Documents (as defined in the Securities 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 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 Party 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 a portion of the Revolving Loan Transactions under the Loan Confirmations, (a) any payment made pursuant to Section 6 of the Agreement shall be 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 the avoidance of doubt, the Transactions shall remain in full force and effect except 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) by MLI without the consent of Dealer or except as expressly permitted under this Master Confirmation (including, for the avoidance of doubt, in connection with its hedging activities relating a Physical Settlement election); provided that it shall be an Additional Termination Event solely with respect to a portion of the Transactions proportionate to the Collateral Units subject to such “Exchange Notice”, in accordance with Section 3(g)(vii) below;
(v) the redemption by the Units Issuer of any Collateral Units (as defined in the Pledge Agreement) pursuant to Section 3.2(b)(iii) of the LLC Agreement or otherwise if Counterparty has not, 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 be an Additional Termination Event solely with respect to a portion of the Transactions proportionate to such Collateral Units redeemed (and not replaced pursuant to this Transactionclause), is not effective within 185 days in accordance with Section 3(g)(vii) below; and
(vi) Counterparty shall have received notice from the Trade Date Units Issuer pursuant to the Issuer Agreement that the Units Issuer will elect for the Collateral Units (as defined in the Pledge Agreement) to be deemed “securities” (within the meaning of this TransactionArticle 8 of the Uniform Commercial Code of any jurisdiction), or Counterparty or Dealer otherwise becomes aware 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 to become, upon such effectiveness, perfected by “control” within the meaning of such Code by the later of the date the Collateral Units have become such “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 that such Collateral Units have become such “securities.”
Appears in 1 contract
Samples: Share Collar Transactions (Newhouse Broadcasting Corp)
Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan 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 “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 (ii) 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 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 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 such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase 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 Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event as provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, 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 related repurchase settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the 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 such Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (y) 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 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 (the “Repurchase 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 Repurchase 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 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 MLI Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in connection with exchange for delivery of any property or assets of Counterparty or any of its hedging activities relating subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes is repaid prior to this Transactionthe final maturity date of the Convertible Notes (other than upon acceleration of the Convertible Notes described in Section 9(h)(iii)), is or (iv) any Convertible Notes are exchanged by or for the benefit of the Holders (as defined in the Indenture) thereof for any other securities of Counterparty or any of its Affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction; provided that any conversion of Convertible Notes pursuant to the terms of the Indenture shall not effective within 185 days from the Trade Date of this Transactionconstitute a Repurchase Event.
Appears in 1 contract
Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v(i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of Conversion” (as defined in the AgreementIndenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(aA) Counterparty shall, within five Scheduled Trading Days of the “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 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) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this effecting the Transaction, (ii) MLI notifies Counterparty of such inability or increased cost; issuing all required confirmations and statements to Dealer and Counterparty, (iii) on 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 before 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 fifth Exchange Business Day following 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 noticeEarly 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 fails were the sole Affected Party with respect to provide, either directly or indirectlysuch Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction (and, for a loan the avoidance of doubt, the provisions of Section 10(l) shall apply to MLI 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 either Options, multiplied by (3) (x) the Pledged Shares, pursuant to, and in accordance with, sum of (i) the Securities Loan Agreement or amount of cash paid (yif any) Shares (other than the Pledged Shares) that are freely tradable in an amount equal to the Number Holder (as such term is defined in the Indenture) of Shares, an Affected Convertible Note upon terms consistent with then-applicable law. In the event that such an agreement is executed conversion thereof and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing ofii) the Number number of Shares.
Shares delivered (bif any) At any time after the loan of the Pledged Shares by Counterparty to MLI pursuant to the Securities Loan AgreementHolder of an Affected Convertible Note upon conversion thereof, Counterparty demands multiplied by the return of Applicable Limit Price on the Pledged settlement date for the cash to be paid and/or the Shares pursuant to be delivered 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 Holders (as defined in the Securities Loan 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 MLI 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 connection 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, (B) the Transaction shall be the sole Affected 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 hedging activities relating 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 Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 10(h)(iii). Upon receipt of any such Repayment Notice, 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 related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to this Transactionthe 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 such Repayment Notice, is divided by USD 1,000, 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 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 conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not effective within 185 days from occurred and (6) the Trade Date terminated portion of this the Transaction were the sole Affected Transaction.
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Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan AgreementIndenture) that is effective as to Counterparty has been delivered by MLI the relevant converting Holder:
(A) Counterparty may, within five Scheduled Trading Days of the “Conversion Date” (as defined in connection 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 its hedging activities relating 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 (ii) 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 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 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this TransactionSection 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 such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain a representation and warranty that Counterparty is not effective within 185 days 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 as provided in this Section 9(h)(ii). Upon receipt of any such Convertible Notes Repurchase Notice, 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 Trade related repurchase settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of this Transaction.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 such Convertible Notes Repurchase Notice, divided by USD 1,000 [minus (y) 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 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 (the “Repurchase 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 Repurchase 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
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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 Events under Section 5(b)(v) of the Agreement:
Event: (a) (i) MLI is no longer able, or it becomes more costly, The Business Combination fails to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) MLI notifies Counterparty of such inability or increased cost; and (iii) close 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 Outside Date (as defined in the Securities Loan 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 MLI 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 connection with its hedging activities relating exchange for the Redemption Price; provided that, any amount owed by Counterparty shall be reduced by any Prepayment Amount previously paid. Except as set forth in the immediately preceding sentence, in all other circumstances no further payments or deliveries shall be due by either Seller to this Counterparty or Counterparty to Seller in respect of the Transaction, is 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 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 only mean ARRW, not effective within 185 days from the Trade Date of this TransactionTarget.
Appears in 1 contract
Samples: Otc Equity Prepaid Forward Transaction (Arrowroot Acquisition Corp.)
Additional Termination Events. The occurrence of any of the following shall constitute be an Additional Termination Events under Section 5(b)(v) of Event with respect to Counterparty (which shall be the Agreement:sole Affected Party and this Transaction shall be the sole Affected Transaction):
(a) An Amendment Event occurs, in which case the entirety of this Transaction shall be subject to termination.
(ib) MLI is no longer ableA Repayment Event occurs, or it becomes more costly, in which case this Transaction shall be subject to borrow (or maintain a borrowing of) Shares termination only in respect of the principal amount of Reference Notes in excess of $800,000,000 that cease to be outstanding in connection with this Transaction, (ii) MLI notifies Counterparty or as a result of such inability or increased cost; and Repayment Event (iii) on or before the fifth Exchange Business Day following such notice, Counterparty fails to provide, either directly or indirectlyand, for a loan the avoidance of doubt, if the principal amount of Reference Notes that cease to MLI of either (x) the Pledged Sharesbe outstanding is less than $920,000,000, pursuant to, and in accordance with, the Securities Loan Agreement or (y) 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 Shares so borrowed, MLI shall adjust then the terms of this Transaction accordingly (shall continue to apply, subject to the terms and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing of) the Number of Sharesconditions set forth herein).
(bc) At The Option Exercise shall fail to close as a result of any breach by Counterparty of its obligations thereunder, in which case the entirety of this Transaction shall terminate automatically.
(d) If at any time after the loan all, or any portion, of the Pledged Shares by Counterparty 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 MLI pursuant market conditions, illiquidity, illegality, lack of availability of market participants or otherwise, to establish, re-establish, unwind or maintain any hedging transaction necessary or desirable in the normal course of Deutsche’s business of hedging the price and market risk of entering into and performing under this Transaction, in which case the entirety of this Transaction shall be subject to termination. Notwithstanding anything to the Securities Loan Agreementcontrary in the Agreement or the Definitions, Counterparty demands the return may require, by written notice to Deutsche, any amount owed by Deutsche to Counterparty in connection with termination of the Pledged Shares pursuant Transaction to be paid in the Securities Loan Agreement andtype of securities, property or other assets into which (or for which) the Reference Notes are convertible (or exchangeable) at the time of such demandtermination (the value of such securities, MLI property or other assets to be based on their fair market value on the date the Transaction is not able, or it is more costly, terminated as determined by the Calculation Agent in good faith and in a commercially reasonable manner). In addition if the Option Exercise shall fail to borrow (or maintain a borrowing of) Shares close for any reason other than those set forth in connection with this Transaction.
clause (c) A registration statementabove, accompanied by Satisfactory Ancillary Documents, covering then the delivery of the Loaned Shares (as defined in the Securities Loan Agreement) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date entirety of this Transaction.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 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 under 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 5(b)(v6(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:
(a) (i) MLI if at any time Dealer is no longer ableunable, or reasonably determines that it becomes more costlyis inadvisable, to borrow 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 maintain a borrowing of) Shares in connection with this Transactionnot such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) MLI notifies Counterparty 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 as of such inability September 6, 2017 (the “Bond Hedge Transaction”) or increased costthe Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; and or
(iii) on or before if at any time Dealer receives a Par Value Notice, unless the fifth Exchange Business Day 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 noticeevent (a “Par Value ATE”); provided that, Counterparty fails notwithstanding anything to providethe contrary in the Agreement, either directly or indirectly, for Dealer shall designate an Early Termination Date in respect of a loan to MLI of either (x) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other Par Value ATE no later 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 anticipated record or such other Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in 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 effective date 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 event specified in the Securities Loan Agreement) by MLI in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date of this TransactionPar Value Notice.
Appears in 1 contract
Samples: Warrant Transaction (Qiagen Nv)
Additional Termination Events. The following (i) 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 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 Events under Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 5(b)(v6(b) of the Agreement:.
(aii) 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 (iany such notice, a “Repurchase Notice”). Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) MLI 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 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 longer ableevent shall be earlier than 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 “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), or it becomes more costlyif any, that relate to borrow such Convertible Notes]13 and (or maintain 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 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 borrowing ofTransaction 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 and (3) 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 TransactionSection 9(h)(iii). Upon receipt of any such Notice of Exercise, (ii) MLI notifies Counterparty of such inability or increased cost; and (iii) on or before the fifth Dealer shall designate an Exchange Business Day following such notice, Counterparty fails to provide, either directly or indirectly, for a loan to MLI of either Additional Termination Event (x) the Pledged Shares, pursuant to, and which Exchange Business Day shall in accordance with, the Securities Loan Agreement or (y) Shares (other no event be earlier than the Pledged Sharesrelated settlement date for such Convertible Notes) that are freely tradable in as an amount 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 Number lesser 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 Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing ofA) 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 number of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of) Shares Options specified in connection with this Transaction.
(c) A registration statement, accompanied by Satisfactory Ancillary Documents, covering such Notice of Exercise [minus the delivery number of the Loaned Shares “Make-Whole Conversion Options” (as defined in the Securities Loan 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, for the avoidance of doubt, in determining the amount payable pursuant to Section 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) by MLI pursuant to Section 13 Include in connection with its hedging activities relating to this Transaction, is not effective within 185 days from the Trade Date of this TransactionAdditional Call Option Confirmation. 14 Insert in Additional Call Option Confirmation only.
Appears in 1 contract
Additional Termination Events. The following (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which Counterparty has delivered an Early Conversion Notice (as defined below):
(A) the giving of such Early Conversion Notice shall constitute an Additional Termination Events 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 5(b)(v9 and Section 10(b) of the Agreement:
(aExchange 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) MLI is no longer able, or it becomes more costly, with respect to borrow (or maintain a borrowing of) Shares which Counterparty has elected the “Exchange in connection with this Transaction, Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) MLI that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Counterparty 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 inability Affected Convertible Note, or increased cost(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, (B) the Transaction shall be the sole Affected 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) on or before Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may notify Dealer of such Repayment Event and the fifth 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 Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice and shall remake the representation set forth in Section 8(f) hereof as of the date of such Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such notice, Counterparty fails Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to provide, either directly or indirectly, for the portion of the Transaction corresponding to a loan to MLI number of either Options (xthe “Repayment Options”) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal to the Number lesser of Shares(A) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, upon terms consistent with then-applicable law. In the event that such an agreement is executed divided by USD 1,000, and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining a borrowing ofB) the Number of Shares.
(b) At any time after the loan Options as of the Pledged Shares date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by Counterparty the number of Repayment Options. Any payment hereunder with respect to MLI such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to the Securities Loan Agreement, Counterparty demands the return Section 6 of the Pledged Shares pursuant Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Securities Loan Agreement andTransaction and a Number of Options equal to the number of Repayment Options, at the time of such demand, MLI is not able, or it is more costly, to borrow (or maintain a borrowing of2) 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 this Transaction, is not effective within 185 days from the Trade Date of this Transaction.Counterparty were
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Samples: Base Call Option Transaction (Brookdale Senior Living Inc.)
Additional Termination Events. The following shall constitute Additional Termination Events under Section 5(b)(v) of the Agreement:
(a) (i) MLI is no longer able, or it becomes more costly, to borrow (or maintain a borrowing of) Shares in connection with this Transaction, (ii) 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) the Pledged Shares, pursuant to, and in accordance with, the Securities Loan Agreement or (y) Shares (other than the Pledged Shares) that are freely tradable in an amount equal Notwithstanding anything to the Number of Sharescontrary in this Confirmation, upon terms consistent with then-applicable law. In the event that such an agreement is executed and the Pledged Shares or such other Shares so borrowed, MLI shall adjust the terms any Early Conversion in respect of this Transaction accordingly (and in its sole discretion) taking into account the costs incurred by MLI in borrowing (or maintaining which a borrowing of) the Number “Notice 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 Conversion” (as defined in the Securities Loan AgreementIndenture) that is effective as to Counterparty has been delivered by MLI the relevant converting Holder:
(A) Counterparty may, within ten Scheduled Trading Days of the “Conversion Date” (as defined in connection 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 its hedging activities relating respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section [5.08]39 of the Indenture and (ii) 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 TransactionSection 10(g)(i)(C) as if, is 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, (B) the Transaction shall be the sole Affected 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 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 no such Repayment Notice shall be effective within 185 days unless it contains the representation by Counterparty set forth in Section 8(f) as of the date of such Repayment Notice [; provided further that any “Repayment Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation]42. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 10(g)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice as an Early Termination Date with respect to the Trade Date portion of this Transactionthe Transaction corresponding to a number of Options (the “Repayment 42 Include in Additional Call Option Confirmation only.
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