Initial Note A-2 Holder JPMorgan Chase Bank, National Association Notice Address: JPMorgan Chase Bank, National Association 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx X. Xxxxxxx Facsimile No.: (000) 000-0000 -and- JPMorgan Chase Bank, National Association 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Alto Facsimile No.: (000) 000-0000 with a copy to: Cadwalader, Xxxxxxxxxx & Xxxx LLP 000 Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxx Xxxxxxxxx Facsimile No.: (000) 000-0000 EXHIBIT C PERMITTED FUND MANAGERS
Initial Note A-1 Holder (Prior to Securitization of Note A-1): STARWOOD MORTGAGE CAPITAL LLC Notice Address: Starwood Mortgage Capital LLC 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000 Xxxxx Xxxxx, Xxxxxxx 00000 Attention: Xx. Xxxxxx X. Fairbanks Facsimile No. (000) 000-0000 with a copy to: Xxxxx Fargo Commercial Mortgage Services, Inc. Duke Energy Center 000 Xxxxx Xxxxx Xx., 12th Floor MAC X0000-000 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Asset Manager – Starwood Mortgage Capital Facsimile No.: (000) 000-0000
Initial Note A-3 Holder (Prior to Securitization of Note A-3): To UBS AG, New York Branch: UBS AG, by and through its branch office at 1285 Avenue of the Americas, New York, New York 1285 Avenue of the Americas Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxxx Email: xxxxx.xxxxxx@xxx.xxx with a copy to: Cadwalader, Xxxxxxxxxx & Xxxx LLP 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxxxxxx, Esq. Facsimile No.: (000) 000-0000 Email: xxxxx.xxxxxxxxx@xxx.xxx Following Securitization of Note A-3 the applicable notice addresses set forth in the related Securitization Servicing Agreement.
Initial Note A-4 Holder (Prior to Securitization of Note A-4): To UBS AG, New York Branch: UBS AG, by and through its branch office at 1285 Avenue of the Americas, New York, New York 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxx Email: xxxxx.xxxxx@xxx.xxx with a copy to: UBS AG, by and through its branch office at 1285 Avenue of the Americas, New York, New York 1285 Avenue of the Americas Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxx Xxxxxxxxxxx Email: xxxx.xxxxxxxxxxx@xxx.xxx with a copy to: Cadwalader, Xxxxxxxxxx & Xxxx LLP 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxxxxxx, Esq. Facsimile No.: (000) 000-0000 Email: xxxxx.xxxxxxxxx@xxx.xxx Following Securitization of Note A-4 the applicable notice addresses set forth in the related Securitization Servicing Agreement.
Initial Notes On the Issue Date, there will be originally issued four hundred million dollars ($400,000,000) aggregate principal amount of Notes, subject to the provisions of this Indenture (including Section 2.02). Notes issued pursuant to this Section 2.03(A), and any Notes issued in exchange therefor or in substitution thereof, are referred to in this Indenture as the “Initial Notes.”
Initial Notes and Additional Notes On the Initial Closing Date, (i) each Buyer shall pay its respective Initial Purchase Price (less, in the case of Hxxxxx Bay Master Fund Ltd. ("Hxxxxx Bay"), the amounts withheld by such Buyer pursuant to Section 4(g)) to the Company for the Initial Notes and the Initial Warrants to be issued and sold to such New Buyer at the Initial Closing, by wire transfer of immediately available funds in accordance with the Company's written wire instructions and (ii) the Company shall deliver to each New Buyer (A) an Initial Note in the aggregate original principal amount as is set forth opposite such Buyer's name in column (3) of the Schedule of Buyers and (B) an Initial Warrant pursuant to which such New Buyer shall have the right to acquire up to such number of Initial Warrant Shares as is set forth opposite such New Buyer's name in column (4) of the Schedule of Buyers, in all cases, duly executed on behalf of the Company and registered in the name of such New Buyer or its designee. On each Additional Closing Date, (i) each applicable New Buyer shall pay its respective Additional Purchase Price (less, in the case of Hxxxxx Bay, the amounts withheld by such Buyer pursuant to Section 4(g)) to the Company for the Additional Notes and the Additional Warrants to be issued and sold to such New Buyer at the Additional Closing, by wire transfer of immediately available funds in accordance with the Company's written wire instructions and (ii) the Company shall deliver to each New Buyer (A) an Additional Note in an aggregate original principal amount equal to the applicable Additional Note Purchase Amount and (B) an Additional Warrant pursuant to which such Buyer shall have the right to acquire up to that number of shares of Common Stock equal to the number of Additional Conversion Shares underlying the Additional Notes to be purchased by such Buyer in such Additional Closing, based on the initial Fixed Conversion Price, in all cases, duly executed on behalf of the Company and registered in the name of such Buyer or its designee.
Additional Notes; Repurchases The Company may, without the consent of the Holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other than differences in the issue price and interest accrued prior to the issue date of such additional Notes) in an unlimited aggregate principal amount; provided that if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax purposes, such additional Notes shall have a separate CUSIP number. Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion of Counsel to cover such matters, in addition to those required by Section 17.05, as the Trustee shall reasonably request. In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives. The Company shall cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section 2.08 and such Notes shall no longer be considered outstanding under this Indenture upon their repurchase.
Additional Notes The Company may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without notice to or consent of the Holders of the Notes, create and issue pursuant to this Indenture additional Notes (“Additional Notes”) having terms and conditions set forth in this Supplemental Indenture, identical to the Notes issued on the date hereof, except that Additional Notes may:
Additional Holders; Joinder In addition to persons or entities who may become Holders pursuant to Section 5.2 hereof, subject to the prior written consent of each of the Holders of a majority of the total Registrable Securities (in each case, so long as such Holder and its affiliates hold, in the aggregate, at least five percent (5%) of the outstanding shares of Common Stock of the Company), the Company may make any person or entity who acquires Common Stock or rights to acquire Common Stock after the date hereof a party to this Agreement (each such person or entity, an “Additional Holder”) by obtaining an executed joinder to this Agreement from such Additional Holder in the form of Exhibit A attached hereto (a “Joinder”). Such Joinder shall specify the rights and obligations of the applicable Additional Holder under this Agreement. Upon the execution and delivery and subject to the terms of a Joinder by such Additional Holder, the Common Stock of the Company then owned, or underlying any rights then owned, by such Additional Holder (the “Additional Holder Common Stock”) shall be Registrable Securities to the extent provided herein and therein and such Additional Holder shall be a Holder under this Agreement with respect to such Additional Holder Common Stock.
Additional Notes; Variable Securities; Dilutive Issuances So long as any Buyer beneficially owns any Securities, the Company will not issue any Notes other than to the Buyers as contemplated hereby and the Company shall not issue any other securities that would cause a breach or default under the Notes. For so long as any Notes remain outstanding, the Company shall not, in any manner, issue or sell any rights, warrants or options to subscribe for or purchase Company Common Stock or directly or indirectly convertible into or exchangeable or exercisable for Company Common Stock at a price which varies or may vary after issuance with the market price of the Company Common Stock, including by way of one or more reset(s) to any fixed price unless the conversion, exchange or exercise price of any such security cannot be less than the then applicable Conversion Price (as defined in the Notes) with respect to the Company Common Stock into which any Note is convertible or the then applicable Exercise Price (as defined in the Warrants) with respect to the Company Common Stock into which any Warrant is exercisable. For purposes of clarification, this does not prohibit the issuance of securities with customary “weighted average” or “full ratchet” anti-dilution adjustments which adjust a fixed conversion or exercise price of securities sold by the Company in the future. For so long as any Notes or Warrants remain outstanding, the Company shall not, in any manner, enter into or affect any Dilutive Issuance (as defined in the Notes) if the effect of such Dilutive Issuance is to cause the Company to be required to issue upon conversion of any Note or exercise of any Warrant any shares of Company Common Stock in excess of that number of shares of Company Common Stock which the Company may issue upon conversion of the Notes and exercise of the Warrants without breaching the Company’s obligations under the rules or regulations of the Principal Market.
