Common use of TERMINATION OF THE SETTLEMENT Clause in Contracts

TERMINATION OF THE SETTLEMENT. (a) Class Plaintiffs, through OTC Plaintiffs’ Counsel, and Barclays, through Barclays’ Counsel, shall, in each of their separate discretions, have the right to terminate the settlement set forth in this Agreement by providing written notice of their election to do so (“Termination Notice”) to all other Parties hereto within thirty (30) days of the date on which any of the following occur: (i) The Court enters an order declining to enter the Preliminary Approval Order in any material respect; (ii) The Court enters an order refusing to approve this Agreement or any material part of it; (iii) The Court enters an order declining to enter the Final Judgment and Order of Dismissal in any material respect; (iv) The Court enters an Alternative Judgment; (v) The Final Judgment and Order of Dismissal is modified or reversed by a court of appeal or any higher court in any material respect; or (vi) An Alternative Judgment is modified or reversed by a court of appeal or any higher court in any material respect. (b) Notwithstanding this paragraph, the Court’s determination as to the Fee and Expense Application or any Plan of Distribution, or any determination on appeal from any such order, shall not provide grounds for termination of this Agreement or settlement. (c) Except as otherwise provided herein, in the event the settlement is terminated in accordance herewith, is vacated, is not approved, or the Effective Date fails to occur for any reason, then the Parties to this Agreement shall be deemed to have reverted to their respective status in the OTC Action as of the Execution Date, and, except as otherwise expressly provided herein, the Parties shall proceed in all respects as if this Agreement and any related orders had not been entered, and any portion of the Settlement Fund previously paid by or on behalf of Barclays, together with any interest earned thereon (and, if applicable, repayment of any Fee and Expense Award referred to in Paragraph 9(a) hereof), less any Taxes due, if any, with respect to such income, and less costs of administration and notice actually incurred and paid or payable from the Settlement Fund (not to exceed $500,000 without the prior approval of the Court) shall be returned to Barclays within ten (10) business days from the date of the Termination Notice. At the request of Barclays’ Counsel, the Escrow Agent shall apply for any tax refund owed on the Settlement Fund and pay the proceeds to Barclays. (d) Upon application to the Mediator, this Agreement may be terminated if the Mediator determines that all Persons that excluded themselves from the OTC Class would likely have been eligible to receive collectively (but for their exclusion) a material part of the potential distributions from the Settlement Fund. Following the deadline approved by the Court for all Persons to exclude themselves from the Class, OTC Plaintiffs’ Counsel shall provide a list to Barclays of all Persons that have requested exclusion from the Class. Any application to terminate under this paragraph must be made in writing within thirty (30) days following the receipt by Barclays from OTC Plaintiffs’ Counsel of the list of all Persons that have requested to exclude themselves from the Class. (e) Neither Barclays nor Barclays’ Counsel shall directly, or indirectly, solicit or encourage any Person to request exclusion from the Class.

TERMINATION OF THE SETTLEMENT. (a) Class Plaintiffs, through OTC Plaintiffs’ Counsel, and Barclays, through Barclays’ Counsel, shall, in each of their separate discretions, have 8.1. This Settlement is contingent upon Court approval. If the right Court fails to terminate grant Final Approval the settlement set forth in this Agreement by providing written notice of their election to do so (“Termination Notice”) to all other Parties hereto within thirty (30) days of the date on which any of the following occur: (i) The Court enters an order declining to enter the Preliminary Approval Order Settlement in any material respect; (ii) The Court enters an order refusing , the Settlement will be subject to approve this Agreement or any material part of it; (iii) The Court enters an order declining to enter termination by the Final Judgment and Order of Dismissal in any material respect; (iv) The Court enters an Alternative Judgment; (v) The Final Judgment and Order of Dismissal is modified or reversed Party adversely affected by a court of appeal or any higher court in any material respect; or (vi) An Alternative Judgment is modified or reversed by a court of appeal or any higher court in any material respect. (b) such failure. Notwithstanding this paragraph, the Court’s determination as to the motion of Fee and Expense Application or Cost Award and Service Award and/or any Plan plan of Distributiondistribution, or any determination on appeal from any such order, shall not provide grounds for termination of this Settlement Agreement or settlementSettlement. 8.2. The Settlement Administrator shall provide Class Counsel and BANA’s Counsel a list of Successful Opt-Outs within five (c5) business days following the end of the Opt-Out Deadline 8.3. If this Settlement is terminated, then the Settlement and the relevant portions of this 8.4. Except as otherwise provided herein, in the event the settlement Settlement Agreement is terminated in accordance herewith, is vacated, is not approved, or the Effective Date fails to occur for any reason, then the Parties to this Settlement Agreement shall be deemed to have reverted to their respective status in the OTC Action as of February 18, 2022. XXXX retains all rights regarding any defenses on the Execution Datestatute of limitations that it had as of February 18, and2022. In such circumstances, except the Parties shall thereafter work together to arrive at a mutually agreeable schedule for resuming the Action. 8.5. Except as otherwise expressly provided herein, in the event the Settlement Agreement is terminated in accordance herewith, is vacated, nor approved, or the Effective Date fails to occur for any reason, the Parties shall proceed in all respects as if this Settlement Agreement and any related orders had not been entered, and any portion of the Settlement Fund Amount previously paid by or on behalf of BarclaysBANA, together with any interest earned thereon (and, if applicable, repayment re-payment of any Fee and Expense Award referred to in Paragraph 9(a) hereof), less any Taxes dueCost Award, if any, with respect to such income, and less costs of administration and notice actually incurred and paid or payable from the Settlement Fund (not to exceed $500,000 without the prior approval of the Court) shall be returned to Barclays BANA within ten (10) business days from the date of the Termination Noticeevent causing such termination. At However, if XXXX is the request of Barclays’ Counselterminating party, the Escrow Agent shall apply for XXXX agrees to cover any tax refund owed on Settlement Administration Costs incurred or charged by the Settlement Fund and pay Administrator prior to the proceeds to Barclaystermination of this Settlement Agreement. (d) Upon application to the Mediator, this Agreement may be terminated if the Mediator determines that all Persons that excluded themselves from the OTC Class would likely have been eligible to receive collectively (but for their exclusion) a material part of the potential distributions from the Settlement Fund8.6. Following the deadline approved by the Court for all Persons to exclude themselves from the Class, OTC Plaintiffs’ Counsel shall provide a list to Barclays of all Persons that have requested exclusion from the Class. Any application to terminate under this paragraph must be made in writing within thirty (30) days following the receipt by Barclays from OTC Plaintiffs’ Counsel of the list of all Persons that have requested to exclude themselves from the Class. (e) Neither Barclays nor Barclays’ Counsel No Party hereto or its counsel shall directly, or indirectly, solicit or encourage any Person to request exclusion opt-out from the Settlement Class.

TERMINATION OF THE SETTLEMENT. (a) Class Lender Plaintiffs, through OTC Lender Plaintiffs’ Counsel, and Barclayseach of the Settling Defendants, through Barclays’ Counseltheir respective counsel, shall, in each of their separate sole discretions, have the right to terminate the settlement set forth in this Agreement by providing written notice of their election to do so (“Termination Notice”) to all other Parties hereto within thirty (30) days of the date on which any of the following occur: (i) The Court enters an order declining to enter the Preliminary Approval Order in any material respectrespect adverse to the terminating party; (ii) The Court enters an order refusing to approve this Agreement or any material part of itit adverse to the terminating party; (iii) The Court enters an order declining to enter the Final Judgment and Order of Dismissal in any material respectrespect adverse to the terminating party; (iv) The Court enters an Alternative Judgment; (v) The Final Judgment and Order of Dismissal is vacated, modified or reversed by a court of appeal or any higher court in any material respectrespect adverse to the terminating party; or (vi) An Alternative Judgment is vacated, modified or reversed by a court of appeal or any higher court in any material respectrespect adverse to the terminating party. If only one of JPMorgan or BOA terminates this Settlement Agreement pursuant to this Paragraph 13(a), then this Settlement Agreement shall continue in full force and effect as to the non-terminating Parties. (b) Further, in addition to the provisions contained in Paragraph 13(a) herein, JPMorgan and BOA shall have the right, but not the obligation, each in its sole discretion, to terminate this Settlement Agreement, insofar as it pertains to rights and obligations of the terminating Party (JPMorgan or BOA), pursuant to the terms and conditions of its respective supplemental agreement (collectively, the “Supplemental Agreements”) executed at the same time as this Settlement Agreement. The Supplemental Agreements shall not be filed with the Court unless ordered by the Court, and, in such event, Lender Plaintiffs and the Settling Defendants shall request that the Supplemental Agreements, along with any other material submitted, be filed and maintained with the Court under seal. The Supplemental Agreements are expressly incorporated into this Settlement Agreement. If only one of JPMorgan or BOA terminates this Settlement Agreement pursuant to its Supplemental Agreement, then this Settlement Agreement shall continue in full force and effect as to the non-terminating Parties. (c) Notwithstanding this paragraphParagraph 13, the Court’s determination as to the Fee and Expense Application Application, any application for service awards to any plaintiff, or any Plan of Distribution, or any determination on appeal from any such order, shall not provide grounds for termination of this Agreement or settlement. (cd) Except as otherwise provided herein, in the event the settlement is terminated in accordance herewith, is vacated, is not approved, or the Effective Date fails to occur for any reason, then the Parties to this Agreement shall be deemed to have reverted to their respective status in the OTC Lender Action as of the Execution Date, and, except as otherwise expressly provided herein, the Parties shall proceed in all respects as if this Agreement and any related orders had not been entered. The litigation between the Parties shall be returned, to the maximum extent possible, to the position that existed on June 7, 2019, without waiver or prejudice to the Parties’ rights, claims, or defenses as they existed on that date, which is expressly preserved; and any judgment or order entered by the Court in accordance with the terms of this Agreement shall be treated as vacated, nunc pro tunc, and any judgment or order vacated as part of the implementation of this Agreement shall be treated as reinstated, nunc pro tunc. Any portion of the Settlement Fund previously paid by or on behalf of BarclaysSettling Defendants, together with any interest earned thereon (and, if applicable, repayment of any Fee and Expense Award or service award referred to in Paragraph 9(a9(b) hereof), less any Taxes due, if any, with respect to such income, and less costs of administration and notice actually incurred and paid or payable from the Settlement Fund (not to exceed $500,000 250,000 without the prior approval of the Court) shall be returned to Barclays Settling Defendants within ten (10) business days from the date of the Termination Notice. At the request of BarclaysSettling Defendants’ Counsel, the Escrow Agent shall apply for any tax refund owed on the Settlement Fund and pay the proceeds to Barclays. (d) Upon application to the Mediator, this Agreement may be terminated if the Mediator determines that all Persons that excluded themselves from the OTC Class would likely have been eligible to receive collectively (but for their exclusion) a material part Settling Defendants. None of the potential distributions from the Settlement Fund. Following the deadline approved by the Court for all Persons to exclude themselves from the Class, OTC Plaintiffs’ Counsel shall provide a list to Barclays of all Persons that have requested exclusion from the Class. Any application to terminate under this paragraph must be made in writing within thirty (30) days following the receipt by Barclays from OTC Plaintiffs’ Counsel of the list of all Persons that have requested to exclude themselves from the Class. (e) Neither Barclays Parties nor Barclays’ Counsel their counsel shall directly, or indirectly, solicit or encourage any Person to request exclusion from the Class. For the avoidance of doubt, if the settlement is terminated in accordance herewith, is vacated, is not approved, or the Effective Date fails to occur for any reason as to less than all of the Settling Defendants, then this Settlement Agreement shall continue in full force and effect as to the non-affected Parties.

TERMINATION OF THE SETTLEMENT. (a) Class Lender Plaintiffs, through OTC Lender Plaintiffs’ Counsel, and Barclays, through Barclays’ Counsel, shall, in each of their separate discretions, have the right to terminate the settlement set forth in this Agreement by providing written notice of their election to do so (“Termination Notice”) to all other Parties hereto within thirty (30) days of the date on which any of the following occur: (i) The Court enters an order declining to enter the Preliminary Approval Order in any material respectrespect adverse to the terminating party; (ii) The Court enters an order refusing to approve this Agreement or any material part of itit adverse to the terminating party; (iii) The Court enters an order declining to enter the Final Judgment and Order of Dismissal in any material respectrespect adverse to the terminating party; (iv) The Court enters an Alternative Judgment; (v) The Final Judgment and Order of Dismissal is vacated, modified or reversed by a court of appeal or any higher court in any material respect; orrespect adverse to the terminating party; (vi) An Alternative Judgment is vacated, modified or reversed by a court of appeal or any higher court in any material respectrespect adverse to the terminating party; or (vii) Barclays fails to deposit $4 million into the Settlement Fund pursuant to Paragraph 10(b) hereto. (b) Further, the Lender Plaintiffs shall provide a list of those persons, if any, who have filed Requests for Exclusion, together with all such requests for Exclusion, to Barclays within five (5) business days of the deadline set by the Court for the filing of Requests for Exclusion. Barclays has the right to terminate the Settlement Agreement if the damages suffered by the persons submitting Requests for Exclusion would likely have amounted to a certain amount of the total estimated damages of all class members (the “Materiality Threshold”). The amount of the Materiality Threshold is not reflected in this Agreement, but shall be reflected in a supplemental agreement to be executed by the parties contemporaneously with the execution of this Agreement. The supplemental agreement will not be filed with the Court unless the Court orders it to be filed, in which case the Parties will seek to file it under seal. (c) Notwithstanding this paragraphParagraph 13, the Court’s determination as to the Fee and Expense Application Application, any application for service awards to any plaintiff, or any Plan of Distribution, or any determination on appeal from any such order, shall not provide grounds for termination of this Agreement or settlement. (cd) Except as otherwise provided herein, in the event the settlement is terminated in accordance herewith, is vacated, is not approved, or the Effective Date fails to occur for any reason, then the Parties to this Agreement shall be deemed to have reverted to their respective status in the OTC Lender Action as of the Execution Date, and, except as otherwise expressly provided herein, the Parties shall proceed in all respects as if this Agreement and any related orders had not been entered. The litigation between the Parties shall be returned, to the maximum extent possible, to the position that existed on February 9, 2018, without waiver or prejudice to the Parties’ rights, claims, or defenses as they existed on that date, including without limitation Barclays’ objection to and defense based on a lack of personal jurisdiction, which is expressly preserved; and any judgment or order entered by the Court in accordance with the terms of this Agreement shall be treated as vacated, nunc pro tunc, and any judgment or order vacated as part of the implementation of this Agreement shall be treated as reinstated, nunc pro tunc. Any portion of the Settlement Fund previously paid by or on behalf of Barclays, together with any interest earned thereon (and, if applicable, repayment of any Fee and Expense Award referred to in Paragraph 9(a9(b) hereof), less any Taxes due, if any, with respect to such income, and less costs of administration and notice actually incurred and paid or payable from the Settlement Fund (not to exceed $500,000 250,000 without the prior approval of the Court) shall be returned to Barclays within ten (10) business days from the date of the Termination Notice. At the request of Barclays’ Counsel, the Escrow Agent shall apply for any tax refund owed on the Settlement Fund and pay the proceeds to Barclays. (d) Upon application to the Mediator, this Agreement may be terminated if the Mediator determines that all Persons that excluded themselves from the OTC Class would likely have been eligible to receive collectively (but for their exclusion) a material part of the potential distributions from the Settlement Fund. Following the deadline approved by the Court for all Persons to exclude themselves from the Class, OTC Plaintiffs’ Counsel shall provide a list to Barclays of all Persons that have requested exclusion from the Class. Any application to terminate under this paragraph must be made in writing within thirty (30) days following the receipt by Barclays from OTC Plaintiffs’ Counsel of the list of all Persons that have requested to exclude themselves from the Class. (e) Neither Barclays nor Barclays’ Counsel shall directly, or indirectly, solicit or encourage any Person to request exclusion from the Class.

TERMINATION OF THE SETTLEMENT. (a) Class Lender Plaintiffs, through OTC Lender Plaintiffs’ Counsel, and BarclaysHSBC, through Barclays’ HSBC’s Counsel, shall, in each of their separate discretions, have the right to terminate the settlement set forth in this Agreement by providing written notice of their election to do so (“Termination Notice”) to all other Parties hereto within thirty (30) days of the date on which any of the following occur: (i) The Court enters an order declining to enter the Preliminary Approval Order in any material respectrespect adverse to the terminating party; (ii) The Court enters an order refusing to approve this Agreement or any material part of itit adverse to the terminating party; (iii) The Court enters an order declining to enter the Final Judgment and Order of Dismissal in any material respectrespect adverse to the terminating party; (iv) The Court enters an Alternative Judgment; (v) The Final Judgment and Order of Dismissal is modified or reversed by a court of appeal or any higher court in any material respect; orrespect adverse to the terminating party; (vi) An Alternative Judgment is modified or reversed by a court of appeal or any higher court in any material respectrespect adverse to the terminating party; or; (vii) HSBC fails to deposit $4 million into the Settlement Fund pursuant to Paragraph 10(b) hereto. (b) Notwithstanding this paragraph, the Court’s determination as to the Fee and Expense Application Application, any application for service awards to any Class Plaintiff, or any Plan of Distribution, or any determination on appeal from any such order, shall not provide grounds for termination of this Agreement or settlement. (c) Except as otherwise provided herein, in the event the settlement is terminated in accordance herewith, is vacated, is not approved, or the Effective Date fails to occur for any reason, then the Parties to this Agreement shall be deemed to have reverted to their respective status in the OTC Lender Action as of the Execution Date, and, except as otherwise expressly provided herein, the Parties shall proceed in all respects as if this Agreement and any related orders had not been entered. The litigation between the Parties shall be returned, to the maximum extent possible, to the position that existed on December 22, 2017, without waiver or prejudice to the Parties rights, claims, or defenses as they existed on that date, including without limitation HSBC’s and HSBC Holdings plc’s objection to and defense based on a lack of personal jurisdiction, which is expressly preserved; and any judgment or order entered by the Court in accordance with the terms of this Agreement shall be treated as vacated, nunc pro tunc, and any judgment or order vacated as part of the implementation of this Agreement shall be treated as reinstated, nunc pro tunc. Any portion of the Settlement Fund previously paid by or on behalf of BarclaysHSBC, together with any interest earned thereon (and, if applicable, repayment of any Fee and Expense Award referred to in Paragraph 9(a) hereof), less any Taxes due, if any, with respect to such income, and less costs of administration and notice actually incurred and paid or payable from the Settlement Fund (not to exceed $500,000 250,000 without the prior approval of the Court) shall be returned to Barclays HSBC within ten (10) business days from the date of the Termination Notice. At the request of Barclays’ HSBC’s Counsel, the Escrow Agent shall apply for any tax refund owed on the Settlement Fund and pay the proceeds to BarclaysHSBC. (d) Upon application The Lender Plaintiffs shall provide a list of Requests for Exclusion to HSBC within five (5) business days of the Mediator, this deadline set by the Court for the filing of Requests for Exclusion. HSBC has the right to terminate the Settlement Agreement may be terminated if the Mediator determines that all Persons that excluded themselves from the OTC Class persons submitting Requests for Exclusion would likely have been eligible to receive collectively (but for their exclusion) a material part certain amount of the potential expected distributions from the Net Settlement FundFund (the “Materiality Threshold”). Following The amount of the deadline approved Materiality Threshold is not reflected in this Agreement, but shall rather be reflected in a supplemental agreement to be executed by the Court for all Persons to exclude themselves from parties contemporaneously with the Class, OTC Plaintiffs’ Counsel shall provide a list to Barclays execution of all Persons that have requested exclusion from the Class. Any application to terminate under this paragraph must be made in writing within thirty (30) days following the receipt by Barclays from OTC Plaintiffs’ Counsel of the list of all Persons that have requested to exclude themselves from the ClassAgreement. (e) Neither Barclays nor Barclays’ Counsel shall directly, or indirectly, solicit or encourage any Person This Agreement may be terminated upon terms set forth in a supplemental letter agreement to request exclusion from be filed under seal with the ClassCourt.

TERMINATION OF THE SETTLEMENT. (a) Class Plaintiffs, through OTC Plaintiffs’ Counsel, and Barclays, through Barclays’ Counsel, shall, in each of their separate discretions, have 8.1. This Settlement is contingent upon Court approval. If the right Court fails to terminate grant final approval the settlement set forth in this Agreement by providing written notice of their election to do so (“Termination Notice”) to all other Parties hereto within thirty (30) days of the date on which any of the following occur: (i) The Court enters an order declining to enter the Preliminary Approval Order Settlement in any material respect; (ii) The Court enters an order refusing , the Settlement will be subject to approve this Agreement or any material part of it; (iii) The Court enters an order declining to enter termination by the Final Judgment and Order of Dismissal in any material respect; (iv) The Court enters an Alternative Judgment; (v) The Final Judgment and Order of Dismissal is modified or reversed Party adversely affected by a court of appeal or any higher court in any material respect; or (vi) An Alternative Judgment is modified or reversed by a court of appeal or any higher court in any material respect. (b) such failure. Notwithstanding this paragraph, the Court’s 's determination as to the Attorney Fee and Expense Application or and/or any Plan plan of Distributiondistribution, or any determination on appeal from any such order, shall not provide grounds for termination of this Settlement Agreement or settlementSettlement. 8.2. The Settlement Administrator shall provide Class Counsel and BANA’s Counsel a list of Successful Opt-Outs within five (c5) business days of the Opt-Out Deadline. 8.3. If this Settlement Agreement is terminated, then the Settlement and the relevant 8.4. Except as otherwise provided herein, in the event the settlement Settlement Agreement is terminated in accordance herewith, is vacated, is not approved, or the Effective Date fails to occur for any reason, then the Parties to this Settlement Agreement shall be deemed to have reverted to their respective status in the OTC Action as of December 20, 2020. BANA retains all rights regarding any defenses on the Execution Datestatute of limitations that it had as of December 20, and2020. Indeed, except the Parties agree that, if this Settlement Agreement is terminated, then Class Representatives will be able to refile their complaint on behalf of their respective classes as previously filed as of December 20, 2020. In such circumstances, the Parties shall thereafter work together to arrive at a mutually agreeable schedule for resuming the Action. 8.5. Except as otherwise expressly provided herein, in the event the Settlement Agreement is terminated in accordance herewith, is vacated, nor approved, or the Effective Date fails to occur for any reason, the Parties shall proceed in all respects as if this Settlement Agreement and any related orders had not been entered, and any portion of the Settlement Fund Amount previously paid by or on behalf of BarclaysBANA, together with any interest earned thereon (and, if applicable, repayment re- payment of any Attorney Fee and Expense Award referred to in Paragraph 9(a) hereof), less any Taxes dueAward, if any, with respect to such income, and less costs of administration and notice actually incurred and paid or payable from the Settlement Fund (not to exceed $500,000 without the prior approval of the Court) shall be returned to Barclays BANA within ten (10) business days from the date of the Termination Notice. At the request of Barclays’ Counsel, the Escrow Agent shall apply for any tax refund owed on the Settlement Fund and pay the proceeds to Barclaysevent causing such termination. (d) Upon application to the Mediator, this Agreement may be terminated if the Mediator determines that all Persons that excluded themselves from the OTC Class would likely have been eligible to receive collectively (but for their exclusion) a material part of the potential distributions from the Settlement Fund8.6. Following the deadline approved by the Court for all Persons to exclude themselves from the Class, OTC Plaintiffs’ Counsel shall provide a list to Barclays of all Persons that have requested exclusion from the Class. Any application to terminate under this paragraph must be made in writing within thirty (30) days following the receipt by Barclays from OTC Plaintiffs’ Counsel of the list of all Persons that have requested to exclude themselves from the Class. (e) Neither Barclays nor Barclays’ Counsel No Party hereto or its counsel shall directly, or indirectly, solicit or encourage any Person to request exclusion from the Settlement Class.