BEAR XXXXXXX
BEAR, XXXXXXX & CO. INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: 3/9/05
TO: Avon Road Partners, L.P.
c/o Xxxxxx Xxxxxx
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Equity Derivatives Confirmation
REFERENCE NUMBER: NY36586
The purpose of this letter agreement is to confirm the terms and conditions of
the Transaction entered into on the Trade Date specified below (the
"Transaction") between Bear Xxxxxxx Bank plc ("Bear Xxxxxxx") and
{Counterparty}.(Counterparty) This letter agreement, together with the
Transaction supplements described below, constitute the sole and complete
"Confirmation," as referred to in the Master Agreement specified below, with
respect to this Transaction.
1. In lieu of negotiating an ISDA Master Agreement and Schedule, Bear Xxxxxxx
and Counterparty hereby agree that an agreement in the form of the ISDA Master
Agreement (Multicurrency-Cross Border (the "Form Master Agreement") as published
by the International Swaps and Derivatives Association, Inc. ("ISDA"), with a
Schedule attached thereto containing all elections, modifications and amendments
thereto contained in "Elections, Modifications and Amendments Under the Master
Agreement" below (as so supplemented, the "Master Agreement")shall be deemed to
have been executed by both of us on the Trade Date on which we entered into the
first "Transaction" (as defined in the Master Agreement). This Confirmation and
the Transaction to which it relates, as well as all other Transactions between
us (unless otherwise specified in the Confirmations relating to such
Transactions) shall supplement, form a part of and be subject to such Master
Agreement. All provisions contained in, or incorporated by reference to the
Master Agreement shall govern the Transaction referenced in this Confirmation,
as well as all other Transactions between the parties heretofore or hereafter
entered into,except as expressly modified herein or therein. THUS THIS
CONFIRMATION CONSTITUTES BOTH A MASTER AGREEMENT AND A CONFIRMATION THEREUNDER.
Certain of the economic terms of this Transaction will be embodied in
Transaction Supplements issued from time to time by Bear Xxxxxxx to
Counterparty, Each of these Transaction Supplements shall, upon issuance thereof
by Bear Xxxxxxx be incorporated herein by reference, and shall be deemed to
supersede all prior Transaction Supplements. Counterparty shall be bound by the
terms of such Transaction Supplement, unless such Transaction Supplement is
inconsistent with the agreements between the parties intended to be memorialized
thereby and Counterparty notifies Bear Xxxxxxx of that fact within one Business
Day of the receipt by Counterparty of such Transaction Supplement. A form of
Transaction Supplement is attached hereto as Exhibit A.
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The Final Transaction Supplement (the "Final Transaction Supplement"), which
shall embody the final terms of the Transaction, shall be issued not later than
five Exchange Business Days following the end of the Execution Period specified
below, and shall represent the final written agreement of Bear Xxxxxxx with the
Counterparty setting forth the final terms of this.
This Confirmation is subject to and incorporates the 2OOO ISDA Definitions (the
"Definitions") and the 1996 Equity Derivatives Definitions (the "1996
Definitions"), each as published by ISDA.
In the event of any inconsistency between this Confirmation and the Definitions
or the Master Agreement, this Confirmation shall prevail. In the event of any
inconsistency between the portion of this confirmation embodied in this letter
agreement and the portion of this Confirmation embodies in a Transaction
Supplement, the Transaction Supplement shall prevail.
2. This Transaction consists of a variable share pre-paid forward purchase
transaction relating to the Shares specified below. The terms of the particular
Transaction to which this Confirmation relates are as follows:
GENERAL TERMS RELATING TO THE TRANSACTION:
Trade Date: Xxxxx 0, 0000
Xxxxxxxxx: Bear Xxxxxxx
Seller: Counterparty
Base Amount: As specified in the Transaction Supplement.
The Base Amount represents the number of
Shares sold by Bear Xxxxxxx during the
Execution Period. In the case of any
Transaction Supplement other than the Final
Transaction Supplement, this will represent
all shares sold through the "As of" date
specified on the Transaction Xxxxxxxxxx.Xx
the case of the Final Transaction Supplement,
this will represent all Shares sold
throughout the Execution Period.
The parties hereto hereby agree that they
shall enter into this Transaction with
respect to up to the Maximum Base Amount
specified below based on the execution price
of sales of the Shares effected by Bear
Xxxxxxx over the Execution Period specified
below.
Maximum Base Amount: 161,602
Execution Period: From and including the Trade Date to and
including the earlier to occur of (a) the
date on which Bear Xxxxxxx has effected sales
of Shares in number equal to the Maximum Base
Amount and (b) the fifth Exchange Business
Day following the Trade Date.
Floor Price: As specified in the Transaction Supplement.
The Floor Price will represent the product of
(a) the Floor Price Percentage and (b) the
Execution Price.
Floor Price Percentage: 100%
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Cap Price: As specified In the Transaction Supplement.
The Cap Price will represent the product of
(a) the Cap Price Percentage and (b) the
Execution Price.
Cap Price Percentage: 125%
Execution Price: As specified in the Transaction Supplement.
The Execution Price represents the average of
the actual sale price of Shares sold by Bear
Xxxxxxx during the Execution Period. In the
case of any Transaction Supplement other than
the Final Transaction Supplement, this will
be based on all Shares sold through the "As
of" date specified on the Transaction
Supplement. In the case of the Final
Transaction Supplement, this will be based on
all Shares sold throughout the Execution
Period.
Shares: The common shares of Empire Resorts, Inc.,
currently trading under the ticker symbol
NYNY.
Exchange: NASDAQ
Related Exchange (s): The exchanges on quotation systems, if any,
on which options or further contracts on the
Shares are traded or quoted, and as may be
selected from time to time by the Calculation
Agent.
Calculation Agent: Bear Xxxxxxx
PREPAYMENT AMOUNT:
Payment of
prepayment Amount: On the Prepayment Amount Payment Date, the
Purchaser will pay the Prepayment Amount to
Seller.
Prepayment Amount: As specified in the Transaction Supplement.
The Prepayment Amount will represent the
produce of (a) the Prepayment Percentage and
(b) the Execution Price and (c) the Base
Amount.
Prepayment Amount
Payment Date: The third Exchange Business Day following the
final day of the Execution Period and such
earlier date as the parties may agree.
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DETERMINATION OF PRICING DATE:
Pricing Date: As specified in the Final Transaction
Supplement.
Consequence of Market
Disruption Event: The provisions of Section 4.2 of the 1996
Definitions will apply as if this Transaction
were a "Share Transaction" for which the
pricing Date were the Valuation Date, and
Market Disruption Event had the meaning
specified below.
Market Disruption Event: Shall have the meaning specified in Section
4.3 of the 1996 Definition, with this
Transaction being deemed a "Share
Transaction" for purposes of such section.
RIGHT OF SELLER TO ELECT CASH SETTLEMENT:
Seller shall have the right to elect that the
Cash Settlement Terms apply to this
Transaction. If no such election is made,
then the Physical Settlement Terms will
apply.
Notice of such election must be given to Bear
Xxxxxxx between the hours of 9:00 a.m. and
4:00 p.m. (New York time) not less than five
Exchange Business Days prior to the pricing
Date. Such notice shall be given
telephonically and shall be irrevocable when
given.
As a condition precedent to the Seller's
election that the Cash Settlement Terms
apply, the Seller shall post by the last date
on which such election can be made,
additional Collateral in a form and of an
amount determined by Bear Xxxxxxx in its sole
discretion.
PHYSICAL SETTLEMENT TERMS.
Physical Settlement: On the Settlement Date, Seller will deliver
the Number of Shares to be Delivered. Such
delivery will be made on the Settlement Date
through the Clearance System at the accounts
specified in this Confirmation and will be
made on a "free" basis.
In addition, on the Settlement Date, Seller
will pay to the Purchaser at the accounts
specified in this Confirmation cash in an
amount equal to the Rounding Correction.
All such deliveries will be required to be
made at or before 10.00 a.m. on the
Settlement Date.
Number of Shares to Be
Delivered: Notwithstanding Section 6.3 of the 1996
Definitions, the "Number of Shares to be
Delivered" for the Settlement Date will be a
number of Shares equal to the Delivery Amount
for the Pricing Date, with such sum being
rounded down to the nearest whole share.
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Relevant Price: The closing price per Share as quoted by the
Exchange at the close of trading on the
Exchange on the Pricing Date.
Delivery Amount: For the Settlement Date, an amount calculated
as follows:
(a) if the Relevant Price for the Pricing
Date is greater than or equal to the Cap
Price, then:
Floor Price+Relevant Price=Cap Price
Base amount x ------------------------------------
Relevant Price
(b) if the Relevant Price for the Pricing
Date is less than the Cap Price but greater
than the Floor Price, then:
Floor Price
Base Amount x -------------------
Relevant Price
(c) if the Relevant Price for the Pricing
Date is Less than or equal to the Floor Price,
then:
Base Amount
Rounding Correction: An amount equal to the product of (a) the
Relevant Price for the Pricing Date and (b)
the difference, if any, between (i) the
Delivery Amount for the Pricing Date and (ii)
the Number of Shares to be Delivered with
respect to the related Settlement Date.
Settlement Date: Shall have the meaning set forth in Section
6.2 of the 1996 Definitions, gave that the
references in such provision to "Exercise
Date" will be deemed to be references to
the Pricing Date.
Applicability of Certain
Sections of the 1996
Definitions: Sections 6.6 (Expenses) and, except to the
extent expressly set forth to the country
herein, 6.7 (Dividends) of the 1996 Definitions
will apply to any delivery of shares
hereunder, save that the reference to
"Exercise Date" will be deemed to be a
reference to "Pricing Date".
Section 6.8 (Representation and Agreement) of the
1996 Definitions will apply to any delivery of
Shares hereunder. For the avoidance of doubt, the
"Additional Representations of the Counterparty"
set forth below will also apply to any delivery of
Shares hereunder, including, without limitation,
subparagraph (a) thereof, which imposes conditions
on the Shares that Seller may deliver.
Section 6.9 (Failure to Deliver) of the 1996
Definitions will apply to any obligation to
deliver Shares hereunder, save that the
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reference to "Exercise Date" will be deemed
to be a reference to "Pricing Date."
Section 6.10 (Default Interest) of the 1996
Definitions will apply to any obligation to
deliver Shares hereunder.
Clearance System: The principal domestic clearance system
customatily setting trades on a free delivery
basis in the Shares as of the Pricing Date,
as selected by the Calculation Agent, subject
to "Settlement by Delivery of Collateral"
below.
Settelment by Delivery
of Collateral : The partice agree that if Bear Xxxxxxx would
otherwise be obligated to return Collateral
(as defined in the Collateral Provisions
below) in accordance with the Collateral
Provisions and Seller would otherwise be
obligated to deliver Shares hereunder, Bear
Xxxxxxx may, at its sole option, retain the
Collateral (but only to the extent of the
number of Shares required to be delivered by
seller) and Seller will thereupon not be
obligated to deliver the shares.
The "Settlement by Delivery of Collateral" as
described above, shall take place, as to
Seller, in account maintained by Seller at
Bear Xxxxxxx in accordance with the Customer
Agreement between Counterparty and Bear
Xxxxxxx dated as of {insert date},between
Counterparty and Bear Xxxxxxx and its
affiliates as amended hereby (the "Customer
Agreement"), and all such property and monies
maintained in such accounts shall be
Collateral and will be subject to the
security interest of Bear Xxxxxxx. In such
event, transfer on the books and records of
the party maintaining such account shall be
deemed to be the clearance System for all
purposes hereunder. In addition, such
transaction shall be governed by, and subject
to the provisions of, the agreements and
terms governing such accounts, as amended
hereby.
Cash Settlement Terms:
Payment: On the Cash Settlement Payment Dare, Seller
will pay to Purchaser the Cash Settlement
Amount, if any.
Cash Settlement
Payment Date: The third Exchange Business Day following the
Pricing Date (or if such day is not a
Currency Business Day, the next which is a
Currency Business Day).
Cash Settlement Amount: As to the Cash Settlement Payment Date,
Delivery Amount x Relevant Price
where: "Delivery Amount" means the
"Delivery Amount" which would have
applied to the Pricing Date in
accordance With the Physical Settlement
Terms had
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Seller not elected that these Cash
Settlement Terms apply: and
"Relevant Price" is the Relevant Price
which would have applied to the Pricing
Date had Seller not elected that these
Cash Settlement Terms apply.
PAYMENTS AND DELIVERIES IN RESPECT OF DIVIDENDS:
Determinations and
Obligations: If there are one or more dividends, whether
ordinary or extraordinary, having an
"ex-dividend" date during the period from but
excluding the Trade Date to and including the
Pricing Date:
(a) with respect to any such dividends which
are in cash, the Seller shall pay to the
Purchaser on the Paythrough Date (as defined
below) the Paythrough Amount. The
"Paythrough Amount" with respect to any
dividend that is in cash shall equal the
portion of such dividend expressed on a per
Share basis multiplied by (b) the Base
Amount(s); and
(b) with respect to any such dividends which
are not in cash, the Seller shall deliver to
the Purchaser on the Delivery Date (as
defined below) the Dividend/ Distribution
Quantity.
The "Dividend/Distribution Quantity" with
respect to any non-cash dividend shall equal
(a) the quantity of assets comprising such
dividend, expressed on a per share basis,
multiplied by (b) the Base Amount.
The "Paythrough Date" will be the New York
Business Day following the date on which the
dividend with respect to which the related
Paythrough Amount is payable would have been
received by persons who held the shares on
the relevant ex-dividend date;
The "Delivery Date" will be the New York
Business Day following the date on which the
related non-cash dividend or distribution
with respect to which the related
Dividend/Distribution Quantity is payable in
accordance with the paragraph above would
have been received by persons who held the
shares on the relevant ex-dividend date.
ADJUSTMENTS:
Method of Adjustment: Following the declaration by the Issuer of
the terms of any Potential Adjustment Event,
the Calculation Agent shall determine whether
such Potential Adjustment Event has a
dilutive or concentrative affect on the
theoretical value of the shares and, if, so,
will (a) make the corresponding adjustments
to
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any one or more of the Cap Price, the Floor
Price and the Base Amount and any other
variable relevant to the settlement or
payment terms of this Transaction as the
Calculation Agent determines appropriate to
account for that dilutive or concentrative
effect and (b) determine the effective date
(s) of the adjustment(s). For the avoidance
of doubt, for purposes of determining whether
an event is a Potential Adjustment Event
(including, but not limited to, those
specified in Section 9.1(e)(ii), 9.1(e)(iii),
and 9.1(e)(vi) to the extent analogous to the
foregoing) and any adjustment to be made in
respect thereof, the Calculation Agent shall
take into account the effect of other
provisions of this Confirmation, including
those relating to Paythrough Amounts and
Distribution Quantities.
ADJUSTMENTS FOR EXTRAORDINARY EVENTS:
Share-for-Share or
Share-for-Combined
Merger Event: If there is a Merger Event for which the
Merger Consideration is Share-for-Share or if
there is a Merger Event for which the Merger
Consideration is Share-for-Combined then, not
earlier than twenty Exchange Business Days
not later then the fifteenth Exchange
Business Day prior to the proposed Merger
Date, Seller may request that Purchaser
provide terms under which the Transaction may
continue (a "Continued Terms Request"), If
Seller makes a Continued Terms Request, then
Purchaser shall, not later than ten Exchange
Business Days prior to the proposed Merger
Date notify Seller of the terms, as
determined by Purchaser in a commercially
reasonable manner (which would be reflective
of both increases and decreases in value
attendant upon the Merger Event), under which
the Transaction may continue after the Merger
Date, If Seller notifies Purchaser that
Seller accepts such terms by no later than
the third Exchange Business Day following the
date on which Purchaser provides such terms
then the Transaction shall continue under the
terms so provided by Purchaser and agreed to
by Seller. All notices under this provision
may be given orally (and confirmed in
writing, which failure to confirm shall not
vitiate the effectiveness of the notice) and
must be given between 9:00 a.m. and 4:00 p.m.
(New York time).
If Seller fails to make a Continued terms
Request as provided herein or if the parties
do not agree the terms on which to continue
the Transaction, then the Merger Event shall
be an Additional Termination Event for which
Seller shall be the sole Additional
Termination Event for which Seller shall be
the sole Affected Party, this Transaction
shall be the sole Affected Transaction and
Second Method and Loss will apply.
ADDITIONAL TERMINATION
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EVENTS: It shall be an Additional Termination Event
if any of the following should occur at any
time from and including the Trade Date to and
including the Pricing Date:
(a) the Merger Date of any Merger Event
(other than a Merger Event which is a Share-
for-Share Merger or a Share-for-Combined
Merger (for which the parties agreed on the
terms on which to continue the Transaction)),
shall occur (save that for purposes of
determining if any event is a Merger Event,
the requirement that the Merger Date be on or
before the Expiration Date or Valuation Date
shall be replaced with a requirement that the
Merger Date be on or before the Pricing
Date);
(b) the Announcement Date of any
Nationalization, Insolvency and Delisting (as
defined below) shall occur.
"Delisting" means that the Exchange
announces that pursuant to the rules of such
Exchange, the Shares cease (or will cease) to
be listed, traded or publicly quoted on the
Exchange for any reason (other than a Merger
Event) and are not immediately re-listed,
re-traded or re-quoted on an exchange or
quotation system located in the same country
as the Exchange (or, where the Exchange is
within the European Union, in any member
state of the European Union).
(c) the occurrence of a Hedge Event. A "Hedge
Event" shall be deemed to have occurred if
Bear Steams cost of borrowing the shares is
greater than 0.00.
For purposes of the foregoing Additional
Termination Events,
(a) Counterparty shall be the sole Affected
Party
(b) this Transaction shall be the sole
Affected Transaction
(c) Second Method and Loss will be deemed to
apply.
COLLATERAL PROVISION: (a) On or before the Local Business Day
following the Trade Date, Counterparty shall
deliver to and or all times during the
Execution Period maintain with Bear Xxxxxxx
as collateral Shares in number equal to the
Maximum Base Amount. At all times after the
Execution Period, Counterparty shall deliver
to and at all times during the Execution
Period maintain with Bear Xxxxxxx as
collateral Shares in number equal to the
Base Amount ( as such Base Amount may be
from time to time adjusted in accordance
herewith).
(b) These Collateral Provision shall be
deemed a security agreement, and
notwithstanding anything to the contrary
contained in the Executed Agreement on this
Confirmation, these provisions shall be
governed by the laws of the State of New
York, without giving effect to the conflicts
or choice of law
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provisions thereof. The Counterparty hereby
grants a first priority continuing security
interest in all Collateral provided hereunder
and in any and all substitutions thereof,
proceeds thereof and distributions thereof.
These Collateral Provisions constitute a
Credit Support document and the failure by a
party to deliver or return Collateral in
accordance with these Collateral Provisions
(if such failure is not remedied on or before
the Local Business Day after notice of such
failure is given to such party) shall
constitute an Event of Default for purposes
of Section 5(a)(iii) of the Master Agreement
with respect to such party. For purpose of
these Collatral Provisions, the term "Local
Business Day" shall have the meaning given
such term in the Master Agreement, except
that references to a payment in clause (b)
thereof will be deemed to include a delivery
or return of Collateral hereunder.
(c) The Collateral delivered hereunder shall
be used to secure Counterparty's obligations
under this Transaction, as well as under any
other transaction with Bear Xxxxxxx or any of
its affiliates, (in any case, a "Bear Xxxxxxx
Entity"), including, without limitation, any
loans or other extensions of credit made by a
Bear Xxxxxxx Entity. Any such transactions,
loans or other extensions of credit shall be
subject to the Customer Agreement (defined
herein) between Counterparty and any Bear
Xxxxxxx Entity and/or any affiliate(s)
thereof. In addition, you may from time to
time be required to post addition collateral
with Bear Xxxxxxx in accordance with the
provisions of the Customer Agreement. For
purposes of this paragraph, "Customer
Agreement" means, as applicable, any
document(s) provided by a Bear Xxxxxxx Entity
which is referred to as the Customer
Agreement, the Professional Account
Agreement, the Institutional Account
Agreement, the Standard Terms and Conditions
of Business, or a similar name.
(d) Counterparty shall have the right to
substitute different Shares (of a like class
and number) for shares maintained as
collareral, and upon verification that the
substitute Shares are acceptable collateral,
the original Shares for which the substitute
Shares are substituted shall be released to
Counterparty within a reasonable time
following its request.
(e) Counterparty agrees that Bear Xxxxxxx or
any of its affiliates may borrow, repledge,
use in its own business and rehypothecate the
Shares pledged by Counterparty as Collateral
on terms determined by Bear Xxxxxxx.
3. Account Details and
Settlement Information: PAYMENT TO BEAR XXXXXXX:
Citibank N.A., New York
ABA code: 000-00-000, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further
credit to
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Bear Xxxxxxx Bank plc
PAYMENTS TO COUNTERPARTY:
Avon Road Partners, L.P.
Bear Xxxxxxx Bank A/C 380-81083
ADDITIONAL PROVISIONS:
Agency. Counterparty acknowledges that Bear, Xxxxxxx & Co. Inc. ("BS&C") has
acted as agent for Counterparty solely for the purposes of arranging this
Transaction with its Affiliate, Bear Xxxxxxx and has acted as agent for Bear
Xxxxxxx (Without accepting any liability for Bear Xxxxxxx'x performance or
non-performance of Bear Xxxxxxx'x obligations under the Transaction) in
connection with the execution of this confirmation on Bear Xxxxxxx'x behalf.
This Confirmation is being provided by BS&C in such capacity. Upon your written
request, BS&C will furnish you with the time at which this Transaction was
entered into. Bear Xxxxxxx is not a member of the Securities Investor Protection
Corporation.
Eligible Contract Participant. Each party represents that it constitutes an
"eligible contract participant" as such term is defined in Section 1(a)12 of the
Commodity Exchange Act, as amended.
Non-Reliance. Each party represents to the other party that (a) it has not
received and is not relying upon any legal, tax, regulatory, accounting or other
advice (whether written or oral) of the other party regarding this Transaction,
other than representations expressly made by that other party in this
Confirmation and in the Master Agreement and (b) in respect of this Transaction,
(i) it has the capacity to evaluate (internally or through independent
professional advice) this Transaction and has made its own decision to enter
into this Transaction and (ii) it understands the terms, conditions and risks of
this Transaction and is willing to assume (financially and otherwise) those
risks. Counterparty acknowledges that Bear Xxxxxxx has advised Counterparty to
consult its own tax and legal advisors in connection with this Transaction
evidenced by this Confirmation and that the Counterparty has done so.
Additional Representations of the Counterparty. With respect to the Shares
pledged as Collateral under this Transaction and any Shares delivered in
accordance herewith, Counterparty represents and warrants to Bear Xxxxxxx and
its affiliates and subsidiaries (which representation and warranty, except in
the case of (e) below, will be deemed repeated at all times during the period
from and including the Trade Date to and including the Settlement Date) that:
(a) Counterparty is the beneficial owner of the Shares and there are not
now any liens, claims, charges, pledges, debts or other encumbrances
on the Shares, and Counterparty has transferred a valid, perfected
first priority security interest in such Shares to Bear Xxxxxxx;
(b) the Shares are not shall not be subject to any condition,
restriction or limitation on the ability of the holder thereof to
freely sell, assign, pledge or otherwise transfer the Shares, other
than the legal restrictions imposed by the Securities Act, as
amended (the "Act"), on persons who are "affiliates" (as that term
is defined in (a) (1) of Rule 144 under the Act) of the Issuer;
(c) for purposes of determining the holding period under Rule 144,
Counterparty acquired and fully paid for the Shares on a date which
is no less than one year prior to the date of this Confirmation;
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(d) Counterparty is not a member of a "syndicate" or "group" within the
meaning of Section 13(d)(3) of the Security Exchange Act:
(e) Counterparty is not as of the trade date or any date during the
Execution Period in possession of any material adverse non public
information regarding the Shares or the Issuer, and Counterparty has
not provided Bear Xxxxxxx with any material non-public information
relating to the Issuer.
(f) Counterparty has not entered into any agreements with the Issuer or
any other person which would prohibit or limit Counterparty from
selling, transferring, or entering into any contracts or hedging
activities relating to the Shares on the Trade Date or on the as of
date of any Transaction Suppliment, or from entering into this
Transaction on the Trade Date or on the as of date of any
Transaction Suppliment or performing its obligation under this
Transaction or any transactions in connection herewith;
(g) all representations made by the Counterparty in the Risk Disclosure
Form were true and correct as of the date made or deemed made;
(h) Counterparty agrees to execute and deliver, or cause to be executed
and delivered, all such further instruments and documents, and to
take all such other actions and to do all such things as Bear
Xxxxxxx may reasonably request in connection with any disposition of
the Shares in accordance with the terms of the Customer Agreement
executed by Counterparty or this Confirmation;
(i) Counterparty has the sole legal right, power and authority to sell,
pledge, transfer and deliver the Shares, and authorizes Bears
Xxxxxxx to have the Shares pledged as Collateral reregistered into
Bear Xxxxxxx "street name"; and
(j) Counterparty hereby authorizes Bear Xxxxxxx (and any of its
affiliates, agents and representatives) to make any inquiry of the
Issuer of the shares, its transfer agents and counsel, as Bear
Xxxxxxx may deem necessary or advisable in connection with the
pledge of the Shares.
Document to be Delivered by Counterparty to Bear Xxxxxxx. The Counterparty
agrees to deliver no later than Trade Date any documentation or instrument
necessary in order to have the shares reregistered into the name of Bear Xxxxxxx
or its nominee which may include stock powers duly executed in blank, in proper
form for transfer or like instrument of transfer.
Additional Covenants of the Counterparty Relating to the Transactions. The
Counterparty agree that during the Execution Period it shall not (a) sell any
Shares (or securities convertible into Shares) or (b) agree with any person
(natural or legal) to act in concert for the purpose of selling Shares or any
securities convertible into Shares.
Additional Mutual Covenants Relating to this Transaction. Each of Counterparty
and Bear Xxxxxxx agrees that (1) it will not treat this Transaction, any portion
of this Transaction of any obligation hereunder as giving rise to any interest
income or other inclusions of ordinary income; (ii) it will not treat the
delivery of any portion of the Shares, assets or cash to be delivered pursuant
to this Agreement as the payment of interest or ordinary income; (iii) it will
treat this Agreement in its entirety as a forward contract for the delivery Of
Shares; and (iv) it will not take any action (including filing any tax returns
or form or taking any position in any tax proceeding) inconsistent with the
obligations contained in (i) through (iii). Notwithstanding the preceding
sentence, either party may take any position required by law, provided
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that such party delivers to the other party an opinion of counsel, nationally
recognized as expert in Federal tax matters, concerning the regulation or an
administrative arrangement or interpretation or applicable court decision
published after the date of this Agreement. Furthermore, Bear Xxxxxxx may treat
this agreement in such fashion it deems appropriate to accurately reflect this
Transactions, economic substance in its own booking, accounting and risk
management systems.
ELECTIONS, MODIFICATIONS AND AMENDMENTS UNDER THE MASTER AGREEMENT:
Survival. The following provisions shall apply to all Transactions that are or
will be governed by the Master Agreement, notwithstanding the termination of
this particular Transaction.
Payments Date Netting. The parties agree that subparagraph (ii) of section 2(c)
of Master Agreement will not apply to any Transaction that are of will be
governed by the Master Agreement. Thus all amounts payable on the same date in
the same currency in respect of all Transaction shall be netted.
Payment Measure. For all Transactions that are or will be governed by the Master
Agreement, "Loss" and "Second Method" shall be the payment measure for purpose
of section 6(c) of the Master Agreement, subject however, as to any particular
Terminated Transaction, to the Confirmation therefor.
Transfer. For all Transactions that are will or will be governed by the Master
Agreement, either party may transfer its rights and obligation under this
Agreement Transaction in accordance with section 7 of the Master Agreement.
However, Bear Xxxxxxx may also transfer in right and obligations under this
Transaction, in whole or in part, to The Bear Xxxxxxx Companies Inc. ("TBSCI")
or any of its Affiliates, provided (a) such Affiliates obligations under this
Transaction shall be fully and unconditionally guaranteed by TBSCI and (b) such
transfer shall not results in the occurrence of an Event of Default or Potential
Event of Default.
Address for Notice. For all Transactions that are or will be governed by the
Master Agreement, the address of the parties shown as such on the most recently
executed Confirmation under Master Agreement shall be deemed to have specified
as the address for notice (for purpose of Section 12(a) of the Master Agreement.
Governing Law. For all Transaction that are or will be governed by the Master
Agreement, the law of the State of New York, without reference to the choice of
law principle thereof will be the governing law for purpose of Section 13(a) of
the Master Agreement.
Dispute Resolution. EXCEPT AS OTHERWISE SET FORTH HEREIN AS IT MAY RELATE TO
SECTION 9.7 OF THE 1996 DEFINITIONS, CONTROVERSIES ARISING BETWEEN THE
COUNTERPARTY AND BSC SHALL BE DETERMINED IN ACCORDANCE WITH THE ARBITRATION
PROVISIONS OF THE CUSTOMER AGREEMENT.
Rate of interest. For all Transactions that are or will be governed by the
Master Agreement and for purposes of determining the Default Rate, the
Non-default Rate or the Termination Rate, it will be deemed that each party's
cost of funding will be determined daily as equaling USD-Federal Funds H-15 for
such day (as defined in the Definitions).
Credits Support Document. For all Transaction which are or will be governed by
the Master Agreement, each of (a) the Collateral Provision contained in this
Confirmation, or any like provisions contained in any other Confirmation and (b)
the Customer Agreement dated as of (insert date) between each and every
subsidiary of TBSCI and the Counterparty (the "Customer Agreement") will be
deemed to be a credit Support Document.
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Avon Road Partners, LP.
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Specified Transaction. For all Transactions that are or will be governed by the
Master Agreement and for purposes of Section (c) of the definition of "Specified
Transactions" contained in Section 14 of the Master Agreement, Specified
Transactions shall mean any transaction, agreement (including the Customer
Agreement) and extensions of credit between BSC or any Specified Entity of BSC
and the Counterparty or any Specified Entity of the Counterparty, whether now
existing or hereafter entered into. "Specified Entity" with respect to any
person shall mean any Affiliate of such person.
Termination Currency. For all Transactions that are or will be governed by the
Master Agreement, USD.
This Confirmation may be executed in several counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to Bear Xxxxxxx a facaimile of the
fully-executed Confirmation to 000-000-0000. For inquiries regarding U.S.
Transactions, please contact Fenaba Addo by telephone at 000-000-0000. For all
other inquiries please contact Orlaith O'Dea by telephone at 000-0-000-0000.
Originals will be provided for your execution upon your request.
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Avon Road Partners, L.P.
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We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR, XXXXXXX & CO. INC., AS AGENT FOR BEAR XXXXXXX BANK PLC
By: /s/ XXXXXX XXXXXXXX
---------------------------
Name: XXXXXX XXXXXXXX
Title: SENIOR MANAGING DIRECTOR
Countarparty hereby agrees to, accepts and confirms the terms of the foregoing
as of the Trade Date.
AVON ROAD PARTNERS, L.P.
By: /s/ Mr. Xxxxxx Xxxxxx
--------------------------
Name: Mr. Xxxxxx Xxxxxx
Title: General Partner
Dated: 3/09/05
BEAR XXXXXXX
BEAR XXXXXXX & CO INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
TRANSACTION SUPPLEMENT
TO: Avon Road Partners, L.P. ("Counterparty")
c/o Xxxxxx Xxxxxx
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
FROM: Bear Xxxxxxx Bank plc ("Bear Xxxxxxx")
DATE: As of Match 9, 2OO5
REFERENCE NUMBER: NY36586
THIS TRANSACTION SUPPLEMENT IS THE FINAL TRANSACTION SUPPLEMENT.
This is a Transaction Supplement as described in the letter agreement between
Bear Xxxxxxx and Counterparty dated as of March 9,2005. It embodies certain of
the economic terms of this Transaction described in that letter agreement. This
Transaction Supplement shall, upon its issuance by Bear Xxxxxxx be incorporated
into the letter agreement by reference, and shall be deemed to supersede all
prior Transaction Supplement.
For purposes of the letter agreement, this Transaction Supplement specifies the
following economic terms:
Transaction Supplement Date: March 9, 2005
Base Amount: 161,602 Shares
Floor Price: USD 9.0838
Cap Price: USD 11.3548
Execution Price: USD 9.0838
Prepayment Amount: USD 1,274,926.66
Prepayment Percentage: 86.85%
Pricing Date: March 9, 2009
Counterparty shall be bound by the terms of this Transaction Supplement, unless
this Transaction Supplement is inconsistent with the agreements between the
parties intended to be memorialized hereby and Counterparty notifies Bear
Xxxxxxx of that fact within one Business Day of the receipt by Counterparty of
this Transaction Supplement.
