EXHIBIT 10.31
December 16, 2005
ICG Holdings, Inc.
000 Xxxx Xxxxx, Xxxxx 0
Xxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX
00000
Credit Suisse First Boston Capital LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
External ID: [ ] - Risk ID: [ ]
Dear Sir or Madam,
The purpose of this letter agreement (this "CONFIRMATION") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "TRANSACTION"). Additional terms of the Transaction
will be set forth in a Supplemental Confirmation substantially in the form set
forth in Annex A hereto (the "SUPPLEMENTAL CONFIRMATION"). This Confirmation
constitutes, and upon execution of the Supplemental Confirmation, this
Confirmation together with the Supplemental Confirmation shall constitute a
"Confirmation" as referred to in the Agreement specified below.
In this Confirmation, "CSFB" means Credit Suisse First Boston Capital LLC,
"Counterparty" means ICG Holdings, Inc. and "Agent" means Credit Suisse First
Boston LLC, solely in its capacity as agent for CSFB and Counterparty.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"2000 DEFINITIONS") and the 2002 ISDA Equity Derivatives Definitions (the
"2002 DEFINITIONS" and, together with the 2000 Definitions, the
"DEFINITIONS"), each as published by the International Swaps and
Derivatives Association, Inc. ("ISDA"), are incorporated into this
Confirmation and the Supplemental Confirmation. In the event of any
inconsistency between the 2000 Definitions and the 2002 Definitions, the
2002 Definitions will govern. In the event of any inconsistency between
the Definitions and this Confirmation or the Supplemental Confirmation,
this Confirmation or the Supplemental Confirmation, as the case may be
will govern. In the event of any inconsistency between this Confirmation
and the Supplemental Confirmation, the Supplemental Confirmation shall
govern. The Transaction shall be deemed to be a Share Option Transaction
within the meaning set forth in the Equity Definitions.
This Confirmation and the Supplemental Confirmation shall supplement, form
a part of and be subject to an agreement (the "AGREEMENT") in the form of
the 1992 ISDA Master Agreement (Multicurrency - Cross Border) (the "ISDA
FORM"), as published by the International Swaps and Derivatives
Association, Inc., as if CSFB and Counterparty had executed the ISDA Form
(without any Schedule thereto) on the date hereof. All provisions
contained in the Agreement are incorporated into and shall govern this
Confirmation and the Supplemental Confirmation except as expressly
modified below. This Confirmation, together with the Supplemental
Confirmation, evidence a complete and binding agreement between you and us
as to the terms of the Transaction to which they relate and replace any
previous agreement between us with respect to the subject matter hereof.
This Confirmation, together with the Supplemental Confirmation and all
other confirmations or agreements between us referencing the ISDA Form,
shall be deemed to supplement, form part of and be subject to the same,
single Agreement.
If there exists any ISDA Master Agreement between CSFB and Counterparty or
any confirmation or other agreement between CSFB and Counterparty pursuant
to which an ISDA Master Agreement is deemed to exist between CSFB and
Counterparty, then notwithstanding anything to the contrary in such ISDA
Master Agreement, such confirmation or agreement or any other agreement to
which CSFB and Counterparty are parties, the Transaction shall not be
considered a Transaction under, or otherwise governed by, such existing or
deemed ISDA Master Agreement.
2. THE TERMS OF THE PARTICULAR TRANSACTION TO WHICH THIS CONFIRMATION RELATES
ARE AS FOLLOWS:
General Terms:
Trade Date: As set forth in the Supplemental Confirmation,
to be the date of completion of CSFB's
Initial Hedge.
Option Style: European
Option Type: Collar (a combination of a Put and a Call).
Notwithstanding anything to the contrary
herein, this Collar shall constitute a single,
inseparable transaction.
Put Seller(Call Buyer): CSFB
Call Seller (Put Buyer): Counterparty
Shares: Common stock of Blackboard Inc. (the "ISSUER")
(Exchange symbol: "BBBB")
Number of Options: As set forth in the Supplemental Confirmation,
the aggregate number of Options to which CSFB's
Initial Hedge relates, as determined by the
Calculation Agent.
Call Strike Price: As set forth in the Supplemental Confirmation.
Put Strike Price: As set forth in the Supplemental Confirmation.
Exchange: NASDAQ
Related Exchange(s): All Exchanges.
Procedures for Exercise:
Expiration Date: The final Averaging Date.
Market Disruption Ev Section 6.3(a) of the 2002 Definitions is
hereby amended by replacing clause (ii) thereof
in its entirety with the following: "(ii) an
Exchange Disruption, or" and inserting
immediately following clause (iii) thereof the
following: "; in each case that the Calculation
Agent determines is
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material."
Automatic Exercise: Applicable; provided that "IN-THE-MONEY" means
(A) the Relevant Price is less than the Put
Strike Price or (B) the Relevant Price is more
than the Call Strike Price.
Valuation:
Valuation Date: The Exercise Date
Averaging Dates: The 10 consecutive Scheduled Trading Days
starting on the First Averaging Date.
First Averaging Date: As set forth in the Supplemental Confirmation.
Relevant Price: The arithmetic average of the VWAP Price on each
Averaging Date.
VWAP Price: On any day, the "Volume Weighted Average Price"
per Share on such day, as displayed on Bloomberg
Page " AQR" (or any successor thereto) for the
Issuer with respect to the period from 9:30 a.m.
to 4:00 p.m. (New York City time) on such day,
as determined by the Calculation Agent.
Averaging Date Modified Postoonement; provided that
Disruption: notwithstanding a anything to the contrary in
the 2002 Definitions, if a Market Disruption
Event occurs on any Averaging Date, the
Calculation Agent may determine that such
Averaging Date is a Disrupted Day only in part,
in which case the Calculation Agent shall make
adjustments to the number of Option: for which
such day shall be an Averaging Date and shall
designate the Scheduled Trading Day determined
in the manner described in Section 6.7(c)(iii)
of the 2002 Definitions as an Averaging Date for
the remaining Options, and shall determine any
Settlement Price based on an appropriately
weighted average instead of the arithmetic
average described under "Settlement Terms --
Settlement Price" below. Such determination and
adjustments will be based on, among other
factors, the duration of any Market Disruption
Event and the volume, historical trading
patterns and price of the Shares.
Settlement Terms:
Settlement Method Applicable
Election:
Default Settlement Cash Settlement
Method:
Electing Party: Counterparty
Settlement Method The date that is 10 Scheduled Trading Days prior
Election
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Date: to the first Averaging Date.
Settlement Price: For Cash Settlement, the Relevant Price. For
Physical Settlement, (x) if the Relevant Price
is less than the Put Strike Price, the Put
Strike Price, and (y) if the Relevant Price is
greater than the Call Strike Price, the Call
Strike Price.
Settlement Currency: USD
Dividends:
Extraordinary Dividend: Any dividend or distribution on the Shares
(other than any dividend or distribution of the
type described in Section 11.2(e)(i) or Section
11.2(e)(ii)(A) or (B) of the 2002 Definitions)
the amount or value of which differs in amount
from the Ordinary Dividend Amount for such
dividend or distribution, as determined by the
Calculation Agent.
Ordinary Dividend USD 0.00 for the first dividend or distribution
Amount: on the Shares for which the ex-dividend date
falls within a regular dividend period of the
Issuer, and zero for any subsequent dividend or
distribution on the Shares for which the
ex-dividend date falls within the same regular
dividend period of the Issuer.
Payment Obligation in In the event of any Extraordinary Dividend,
Respect of Extraordinary Counterparty shall make a cash payment to CSFB,
Dividends: on the date such Extraordinary Dividend is paid
to holders of Shares, in an amount equal to the
product of (i) the Number of Shares on the
ex-dividend date for such Extraordinary Dividend
and (ii) the excess, if any, of the per share
amount or value of such Extraordinary Dividend
over the Ordinary Dividend Amount for such
Extraordinary Dividend, as determined by the
Calculation Agent.
Share Adjustments:
Potential Adjustment If an event occurs that constitutes both a
Events: Potential Adjustment Event under Section
11.2(e)(ii)(C) of the 2002 Definitions and a
Spin-off as described below, it shall be treated
hereunder as a Spin-off and not as a Potential
Adjustment Event.
Method of Adjustment: Calculation Agent Adjustment
Spin-off: A distribution of New Shares (the "SPIN-OFF
SHARES") of a subsidiary of the Issuer (the
"SPIN-OFF ISSUER") to holders of the Shares (the
"ORIGINAL SHARES"). With respect to a Spin-off,
"New Shares" shall have the meaning provided in
Section 12.1(i) of the 2002 Definitions except
that the
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phrase immediately preceding clause (i) thereof
shall be replaced by the following:'"New
Shares' means ordinary or common shares of the
Spin-off Issuer that are, or that as of the
ex-dividend date of such Spin-off are scheduled
promptly to be,".
Consequences of As of the ex-dividend date of a Spin-off, (i)
Spin-offs: "Shares" shall mean the Original Shares and the
Spin-off Shares; (ii) the Transaction shall
continue but as a Share Basket Option
Transaction with a Number of Baskets equal to
the Number of Shares prior to such Spin-off, and
each Basket shall consist of one Original Share
and a number of Spin-off Shares that a holder of
one Original Share would have been entitled to
receive in such Spin-off; and (iii) the
Calculation Agent shall make such adjustments to
the exercise, settlement, payment or any other
terms of the Transaction as the Calculation
Agent determines appropriate to account for the
economic effect on the Transaction of such
Spin-off (provided that no adjustments will be
made to account solely for changes in
volatility, expected dividends, stock loan rate
or liquidity relevant to the Shares or to the
Transaction), which may, but need not, be
determined by reference to the adjustment(s)
made in respect of such Spin-off by an options
exchange to options on the Shares traded on such
options exchange. As of the ex-dividend date of
any subsequent Spin-off, the Calculation Agent
shall make adjustments to the composition of the
Basket and other terms of the Transaction in
accordance with the immediately preceding
sentence.
Extraordinary Events:
Consequences of Merger
Events:
Share-for-Share: Calculation Agent Adjustment
Share-for-Other: Cancellation and Payment (Calculation Agent
Determination)
Share-for-Combined: Component Adjustment
Tender Offer: Applicable
Consequences of Tender
Offers:
Share-for-Share: Calculation Agent Adjustment
Share-for-Other: Cancellation and Payment (Calculation Agent
Determination)
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Share-for-Combined: Calculation Agent Adjustment
Nationalization, Cancellation and Payment (Calculation Agent
Insolvency or Delisting: Determination)
Additional Disruption
Events:
Change in Law: Applicable
Failure to Deliver: Not Applicable
Insolvency Filing: Applicable
Hedging Disruption: Not Applicable
Increased Cost of Not Applicable
Hedging:
Loss of Stock Borrow: Applicable; provided that the phrase "at a rate
equal to or less than the Maximum Stock Loan
Rate" at the end of the definition of Loss of
Stock Borrow shall be deleted.
Maximum Stock Loan Not Applicable
Rate:
Increased Cost of Stock Not Applicable
Borrow:
Hedging Party: CSFB
Determining Party: CSFB
Non-Reliance: Applicable
Agreements and Applicable
Acknowledgments Regarding
Hedging Activities:
Additional Applicable
Acknowledgments:
Credit Support Documents: Section 4 shall be a Credit Support Document
under the Agreement with respect to
Counterparty.
Guarantee dated May 16, 2001 made by Credit
Suisse First Boston (USA), Inc., a Delaware
corporation in favor of each and every
counterparty to one or more Financial
Transactions (as defined therein) with CSFB is a
Credit Support Document under the Agreement with
respect to CSFB.
Account Details:
Payments to CSFB: To be advised under separate cover prior to the
Trade Date
Payments to To be advised under separate cover prior to
Counterparty: the Trade Date
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Delivery of Shares to Credit Suisse First Boston Corp.
CSFB: DTC#: 355
Account#: 2HRY60
Account Name: CSFB Capital LLC Collateral
Management Account
Office: CSFB is acting through its New York Office for
the purposes of the Transaction; Counterparty
is not a Multibranch Party.
Calculation Agent: CSFB. The Calculation Agent will have no
responsibility for good faith errors or
omissions in any determination under the
Transaction.
3. OTHER PROVISIONS:
(a) REIMBURSEMENT OBLIGATION:
Counterparty shall make monthly cash payments to CSFB from time to time in
an amount sufficient to reimburse CSFB for any costs relating to the
borrowing of Shares in connection with hedging CSFB's exposure to the
Transaction.
(b) TERMINATION BY COUNTERPARTY:
At any time, Counterparty may terminate the Transaction in whole or in
part upon 35 Exchange Business Days' prior written notice to CSFB (the
termination date specified in such notice, the "OPTIONAL TERMINATION
DATE"). If Counterparty terminates the Transaction in whole, Counterparty
shall make a cash payment to CSFB (or vice versa, as the case may be) on
the Optional Termination Date in an amount equal to the amount that would
be payable under Section 6 of the Agreement if (i) such Optional
Termination Date were an Early Termination Date (without regard to the
provisions set forth under "Payment on Early Termination" below), (ii)
Counterparty were the sole Affected Party and (iii) the Transaction were
the only Terminated Transaction. If Counterparty terminates the
Transaction in part, Counterparty shall specify the number of Shares with
respect to which the Transaction is to be terminated and (a) Counterparty
shall make a cash payment to CSFB on the Optional Termination Date (or
vice versa, as the case may be) in an amount equal to the amount that
would be payable under Section 6 of the Agreement if (i) such Optional
Termination Date were an Early Termination Date (without regard to the
provision set forth under "Payments on Early Termination" below), (ii)
Counterparty were the sole Affected Party and (iii) the Transaction were
the only Terminated Transaction; provided that (a) for purposes of such
calculation, the Number of Shares shall be deemed to be such number of
Shares with respect to which the Transaction is to be terminated, (b) the
Number of Shares shall be reduced by such number of Shares with respect to
which the Transaction is to be terminated .
(c) ADDITIONAL REPRESENTATIONS AND WARRANTIES OF COUNTERPARTY:
Counterparty hereby represents and warrants to CSFB as of the date hereof
that:
(i) Counterparty is an "eligible contract participant" as such term is
defined in Section 1(a)(12) of the Commodity Exchange Act, as amended.
(ii) Counterparty is not on the date such representation is given, nor has
Counterparty been at any time in the three months prior to the date
of the Term
7
Sheet, an "affiliate", within the meaning of Rule 144 under the
Securities Act, of the Issuer. Counterparty is not an employee or
director of the Issuer, and was not on the date of the Term Sheet,
and is not on the date hereof, in possession of any material
non-public information regarding the Issuer.
(iii) All representations and warranties of Counterparty contained in the
Term Sheet were true and correct as of the times such representations
and warranties were made or repeated or deemed to be made or repeated
under the Term Sheet and Counterparty has performed all of the
covenants and obligations to be performed by Counterparty on or prior
to the date hereof under the Term Sheet.
(iv) Counterparty is, and shall be as of the date if any payment or
delivery by Counterparty hereunder, solvent and able to pay its debts
as they come due, with assets having a fair value greater than
liabilities and with capital sufficient to carry on the businesses in
which it engages.
(v) Counterparty (A) has timely filed, caused to be timely filed or will
timely file or cause to be timely filed all material tax returns that
are required to be filed by it as of the date hereof and (B) has paid
all material taxes shown to be due and payable on said returns or on
any assessment made against it or any of its property and all other
material taxes, assessments, fees, liabilities or other charges
imposed on it or any of its property by any governmental authority,
unless in each case the same are being contested in good faith.
For purposes of determining whether a tax return has been timely
filed, any extensions shall be taken into account.
(vi) Counterparty has not (A) created or permitted to exist any Lien (as
defined in Section 4 below) upon or with respect to the Collateral
(as defined in Section 4 below), (B) sold or otherwise disposed of,
or granted any option with respect to, any of the Collateral or (C)
entered into or consented to any agreement (other than, in the case
of clause (x), this Confirmation) (x) that restricts in any manner
rights of any present or future owner of any Collateral with respect
thereto or (y) pursuant to which any person other than
Counterparty, CSFB and any securities intermediary through whom any
of the Collateral is held (but in the case of any such securities
intermediary only in respect of Collateral held through it) has or
will have Control (as defined n Section 4 below) in respect of
any Collateral.
(vii) Other than financing statements or other similar or equivalent
documents or instruments with respect to the security interests in
the Collateral created by Section 4 below, no financing statement,
security agreement or similar or equivalent document or instrument
covering all or any part of the Collateral is on file or of record
in any jurisdiction in which such filing or recording would be
effective to perfect a lien, security interest or other encumbrance
of any kind on such Collateral.
(viii) All Collateral consisting of securities and all financial assets
underlying Collateral consisting of security entitlements (such as
defined in Section 8-102 of the UCC) at any time pledged hereunder
is and will be issued by an issuer organized under the laws of the
United States, any State thereof or the District of Columbia and is
and will be (i) certificated (and the certificate or certificates in
respect of such securities or financial assets are and will be
located in the United States) and registered in the name of
Counterparty or held through a securities intermediary whose
securities intermediary's jurisdiction (within the meaning of
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Section 8-110(e) of the UCC) is located in the United States or (ii)
uncertificated and either registered in the name of Counterparty or
held through a securities intermediary whose securities
intermediary's jurisdiction (within the meaning of Section 8-110(e)
of the UCC) is located in the United States; provided that this
representation shall not be deemed to be breached if, at any time,
any such Collateral is issued by an issuer that is not organized
under the laws of the United States, any State thereof or the
District of Columbia, and the parties hereto agree to procedures or
amendments here to necessary to enable CSFB to maintain a valid and
continuously perfected security interest in such Collateral, in
respect of which CSFB will have Control (as defined in Section 4
below), subject to no prior Lien (as defined in Section 4 below).
The parties hereto agree to negotiate in good faith any such
procedures or amendments.
(ix) No registration, recordation or filing with any governmental body,
agency or official is required or necessary for the perfection or
enforcement of the security interests in the Collateral created by
Section 4 below, other than the filing of financing statement in any
appropriate jurisdiction.
(x) Counterparty has not performed and will not perform any acts that
might prevent CSFB from enforcing any of the terms of Section 4 or
that might limit CSFB in any such enforcement.
(h) U.S. PRIVATE PLACEMENT REPRESENTATIONS:
Each of CSFB and Counterparty hereby represents and warrants to the other
party as of the date hereof that:
(i) It is an "accredited investor" (as defined in Regulation D under
the Securities Act) and has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of the Transaction, and it is able to bear the
economic risk of the Transaction.
(ii) It is entering into the Transaction for its own account and not with
a view to the distribution or resale of the Transaction or its
rights thereunder except pursuant to a registration statement
declared effective under, or an exemption from the registration
requirements of, the Securities Act.
(i) COVENANTS OF COUNTERPARTY:
(i) Counterparty is aware of and agrees to be bound by the rules of the
National Association of Securities Dealers, Inc. ("NASD") applicable
to option trading and is aware of and agrees not to violate, either
alone or in concert with others, the position or exercise limits
established by the NASD.
(ii) Counterparty shall notify CSFB immediately of Counterparty's
intention to (A) purchase Shares or any other security of the Issuer
with respect to the Transaction in an amount that would cause
Counterparty to become the beneficial owner, directly or indirectly,
of more than three (3) percent of the outstanding Shares of any
equity security of the Issuer, (B) permit any Associated Person of
Counterparty to accept a position as an officer or director of the
Issuer, (C) take any action that would cause Counterparty to
possess, directly or indirectly, the power to direct or cause the
direction of the management and policies of the Issuer, whether by
ownership of voting securities, by contract or otherwise or (D) take
any other action that could
9
reasonably be expected to result in Counterparty's becoming an
"affiliate", within the meaning of Rule 144 under the Securities
Act, of the Issuer. Counterparty shall not take any such action
unless a period of fifteen (15) Exchange Business Days shall have
elapsed after receipt of such notice by CSFB and CSFB shall not have
objected in writing to such action during such period. "ASSOCIATED
PERSON" shall mean (x) any office; director, managing member or
general partner of Counterparty or (y) any officer, director,
managing member or general partner of any person described in clause
(x) above or in this clause (y).
(j) SECURITIES CONTRACT:
The parties hereto acknowledge and agree that each of CSFB and the
Custodian (as defined in Section 4 below) is a "stockbroker" within the
meaning of Section 101 (53A) of Title 11 of the United States Code (the
"BANKRUPTCY CODE") and that the Custodian is acting as agent and custodian
for CSFB in connection with the Transaction and that CSFB is a "customer"
of the Custodian within the meaning of Section 741(2) of the Bankruptcy
Code. The parties hereto further recognize that the Transaction is a
"securities contract", as such term is defined in Section 741(7) of the
Bankruptcy Code, entitled to the protection of, among other provisions,
Sections 555 and 362(b)(6) of the Bankruptcy Code, and that each payment
or delivery of cash, Shares or other property or assets hereunder is a
"settlement payment" within the meaning of Section 741(8) of the
Bankruptcy Code.
(k) ASSIGNMENT:
The rights and duties under this Confirmation and the Supplemental
Confirmation may not be assigned or transferred by any party hereto
without the prior written consent of the other parties hereto, such
consent not to be unreasonably withheld; provided that (i) CSFB may assign
or transfer any of its rights or duties hereunder to any of its affiliates
without the prior written consent of Counterparty and (ii) the Agent may
assign or transfer any of its rights or duties hereunder without the prior
written consent of the other parties hereto to any affiliate of Credit
Suisse First Boston, so long as such affiliate is a broker-dealer
registered with the Securities and Exchange Commission.
(l) NON-CONFIDENTIALITY:
The parties hereby agree that (i) effective from the date of commencement
of discussions concerning the Transaction, Counterparty and each of its
employees, representatives, or other agents may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax
structure of the Transaction and all materials of any kind, including
opinions or other tax analyses, provided by CSFB and its affiliates to
Counterparty relating to such tax treatment and tax structure; provided
that the foregoing does not constitute an authorization to disclose the
identity of CSFB or its affiliates, agents or advisers, or, except to the
extent relating to such tax structure or tax treatment, any specific
pricing terms or commercial or financial information, and (ii) CSFB does
not assert any claim of proprietary ownership in respect of any
description contained herein or therein relating to the use of any
entities, plans or arrangements to give rise to a particular United States
federal income tax treatment for Counterparty.
(m) MATTERS RELATING TO CREDIT SUISSE FIRST BOSTON CAPITAL LLC AND CREDIT
SUISSE FIRST BOSTON LLC:
Agent shall act as "agent" for CSFB and Counterparty in connection with
the Transaction.
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(i) Agent will furnish to Counterparty upon written request a statement
as to the source and amount of any remuneration received or to be
received by Agent in connection herewith.
(ii) Agent has no obligation hereunder, by guaranty, endorsement or
otherwise, with respect to performance of CSFB's obligations
hereunder or under the Agreement.
(iii) Credit Suisse First Boston Capital LLC is an "OTC derivatives
dealer" as such term is defined in the Exchange Act and is an
affiliate of Agent.
(iv) Credit Suisse First Boston Capital LLC is not a member of the
Securities Investor Protection Corporation.
4. COLLATERAL:
Counterparty has granted to CSFB a security interest in the Initial
Pledged Items to secure Counterparty's obligations under the Term Sheet,
this Confirmation, each Supplemental Confirmation and, if applicable, its
Loan Obligations (as defined in the Credit Agreement, if applicable) (such
credit agreement, the "CREDIT AGREEMENT", and such obligations and Loan
Obligations, collectively, the "SECURED OBLIGATIONS"). Counterparty and
CSFB now wish to (i) set forth additional understandings and agreements
relating to such security interest and (ii) confirm, on the terms set
forth herein, the continuation of such security interest.
A. DELIVERY OF COLLATERAL:
On or prior to the Trade Date, Counterparty shall deliver to the CSFB in
pledge hereunder, Eligible Collateral consisting of a number of Shares
equal to the Number of Shares (the "INITIAL PLEDGED ITEMS"). "ELIGIBLE
COLLATERAL" means Shares, cash or, if Counterparty shall have elected to
substitute securities issued by the United States government ("GOVERNMENT
SECURITIES") for Share Collateral in accordance with this Section 4,
Government Securities; provided that Counterparty has good and marketable
title thereto, free of any and all lien, mortgage, interest, pledge,
charge or encumbrance of any kind (other than the security interests in
the Collateral created hereby, a "LIEN") and Transfer Restrictions and
that CSFB has a valid, first priority perfected security interest therein,
a first lien thereon and Control (which means "control" as defined in
Section 8-106 and Section 9-106 of the UCC) with respect thereto.
"TRANSFER RESTRICTION" means, with respect to any item of collateral
pledged hereunder, any condition to or restriction on the ability of the
owner thereof to sell, assign or otherwise transfer such item of
collateral or enforce the provisions thereof or of any document related
thereto whether set forth in such item of collateral itself or in any
document related thereto, including, without limitation, (i) any
requirement that any sale, assignment or other transfer or enforcement of
such item of collateral be consented to or approved by any Person,
including, without limitation, the issuer thereof or any other obligor
thereon, (ii) any limitations on the type or status, financial or
otherwise, of any purchaser, pledgee, assignee or transferee of such item
of collateral, (iii) any requirement of the delivery of any certificate,
consent, agreement, opinion of counsel, notice or any other document of
any Person to the issuer of, any other obligor on or any registrar or
transfer agent for, such item of collateral, prior to the sale, pledge,
assignment or other transfer or enforcement of such item of collateral and
(iv) any registration or qualification requirement or prospectus delivery
requirement for such item of collateral pursuant to any federal, state or
foreign securities law (including, without limitation, any such
requirement arising under Section 5 of the Securities Act as a result of
such security being a "restricted security" or Counterparty being an
"affiliate" of the issuer of such security, as such terms are defined in
Rule 144 under the Securities Act, or as a result of the sale of such
security being
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subject to paragraph (c) of Rule 145 under the Securities Act); provided
that the required delivery of any assignment, instruction or entitlement
order from the seller, Counterparty, assignor or transferor of such item
of collateral, together with any evidence of the corporate or other
authority of such Person, shall not constitute a "Transfer Restriction".
"UCC" means the Uniform Commercial Code as in effect in the State of New
York. "PERSON" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
Any delivery of any securities or security entitlements (each as defined
in Section 8-102 of the UCC) as Collateral to CSFB by Counterparty shall
be effected (A) in the case of Collateral consisting of certificated
securities registered in the name of Counterparty, by delivery of
certificates representing such securities to the Custodian, accompanied by
any required transfer tax stamps, and in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or
assignment in blank, with signatures appropriately guaranteed, all in form
and substance satisfactory to CSFB, and the crediting by the Custodian of
such securities to a securities account (as defined in Section 8-501 of
the UCC) (the "COLLATERAL ACCOUNT") of CSFB maintained by the Custodian,
(B) in the case of Collateral consisting of uncertificated securities
registered in the name of Counterparty, by transmission by Counterparty of
an instruction to the issuer of such securities instructing such issuer to
register such securities in the name of the Custodian or its nominee,
accompanied by any required transfer tax stamps, the issuer's compliance
with such instructions and the crediting by the Custodian of such
securities to the Collateral Account, (C) in the case of securities in
respect of which security entitlements are held by Counterparty through a
securities intermediary, by the crediting of such securities, accompanied
by any required transfer tax stamps, to a securities account of the
Custodian at such securities intermediary or, at the option of CSFB, at
another securities intermediary satisfactory to CSFB and the crediting by
the Custodian of such securities to the Collateral Account or (D) in any
case, by complying with such alternative delivery instructions as CSFB
shall provide to Counterparty in writing. "CUSTODIAN" means Credit Suisse
First Boston LLC, or any other custodian appointed by CSFB and identified
to Counterparty; provided, however, that, upon the occurrence of an Event
of Default where CSFB is the Defaulting Party, Custodian agrees to
transfer all Collateral to an independent, unaffiliated third-party
collateral custodian, as mutually agreed by the parties.
X. XXXXX OF SECURITY INTERESTS IN THE COLLATERAL:
In order to secure the full and punctual observance and performance of the
Secured Obligations, Counterparty hereby assigns and pledges to CSFB, and
grants to CSFB, as secured party, security interests in and to, and a lien
upon and right of set-off against, and transfers to CSFB, as and by way of
a security interest having priority over all other security interests,
with power of sale (and, in the case of the Initial Pledged Items,
reaffirms its assignment and pledge thereof, and its grant of a security
interest therein, pursuant to the Term Sheet), all of Counterparty's
right, title and interest in and to (i) the Initial Pledged Items; (ii)
all additions to and substitutions for the Initial Pledged Items
(including, without limitation, any securities, instruments or other
property delivered or pledged hereunder) (such additions and
substitutions, the "ADDITIONS AND SUBSTITUTIONS"); (iii) the Collateral
Account of CSFB maintained by the Custodian and all securities and other
financial assets (each as defined in Section 8-102 of the UCC) and other
funds, property or assets from time to time held therein or credited
thereto; (iv) all income, proceeds and collections received or to be
received, or derived or to be derived, at the time that the Initial
Pledged Items were delivered to the Custodian or any time thereafter
(whether before or after the commencement of any proceeding under
applicable bankruptcy, insolvency or similar law, by or against.
Counterparty, with respect to Counterparty) from or in connection with the
Initial Pledged Items or the Additions and
12
Substitutions, excluding any Excluded Proceeds; and (v) all rights of
Seller under, and all right, title and interest of Seller in and to, the
Confirmation, the Supplemental Confirmation and the Transaction
(collectively, the "Collateral"). The parties hereto expressly agree that
all rights, assets and property at any time held in or credited to the
Collateral Account shall be treated as financial assets (as defined in
Section 8-102 of the UCC). "EXCLUDED PROCEEDS" means any Ordinary Dividend
Amount that is not distributed after the occurrence and during the
continuance of the Event of Default.
C. CERTAIN COVENANTS OF COUNTERPARTY RELATING TO THE COLLATERAL:
Counterparty agrees that, so long as any of the Secured Obligations remain
outstanding:
1. Counterparty shall ensure at all times that a Collateral Event of
Default shall not occur, and shall pledge additional Collateral in
the manner described hereunder as necessary to cause such
requirement to be met. "COLLATERAL EVENT OF DEFAULT" means, at any
time, the occurrence of either of the following: (A) failure of the
Collateral to include, as Eligible Collateral, a number of Shares at
least equal to the Number of Shares (or, if Counterparty has elected
to substitute Government Securities for Share Collateral in
accordance with this Section 4, the amount of Government Securities
required thereby) or (B) failure at any time of the security
interests in the Collateral created hereby to constitute valid and
perfected security interests in all of the Collateral, subject to no
prior, equal or junior Lien, and, with respect to any Collateral
consisting of securities or security entitlements (each as defined
in Section 8-102 of the UCC), as to which CSFB has Control, or, in
each case, assertion of such by Counterparty in writing.
2. Counterparty shall, at its own expense and in such manner and form
as CSFB may require, give, execute, deliver, file and record any
financing statement, notice, instrument, document, agreement or
other papers that may be necessary or desirable in order to (i)
create, preserve, perfect, substantiate or validate any security
interest granted pursuant hereto, (ii) create or maintain Control
with respect to any such security interests in any investment
property (as defined in Section 9-102(a) of the UCC) or (iii) enable
CSFB to exercise and enforce its rights hereunder with respect to
such security interest.
3. Counterparty shall warrant and defend Counterparty's title to the
Collateral, subject to the rights of CSFB, against the claims and
demands of all persons. CSFB may elect, but without an obligation to
do so, to discharge any Lien of any third party on any of the
Collateral.
4. Counterparty agrees that Counterparty shall not change (i)
Counterparty's name in any manner or (ii) Counterparty's location
(as defined in Section 9-307 of UCC), unless Counterparty shall have
given CSFB not less than 10 days' prior notice thereof.
5. Counterparty agrees that Counterparty shall not (i) create or permit
to exist any Lien (other than the security interests in the
Collateral created hereby) or any Transfer Restriction upon or with
respect to the Collateral, (ii) sell or otherwise dispose of, or
grant any option with respect to, any of the Collateral or (iii)
enter into or consent to any agreement (x) that restricts in any
manner the rights of any present or future owner of any Collateral
with respect thereto (other than this Confirmation) or (y) pursuant
to which any person other than Counterparty, CSFB and any securities
intermediary through whom any of the Collateral is held (but in the
case of any such securities intermediary only in respect of
Collateral held through it) has or will have Control in respect of
any Collateral and represents and warrants to CSFB as of the date
hereof that it has not previously created any such Lien or Transfer
Restriction, effected any such sale, disposition or grant or entered
in or consented to any such agreement.
13
D. ADMINISTRATION OF THE COLLATERAL AND VALUATION OF SECURITIES:
1. CSFB shall determine on each Business Day whether a Collateral Event
of Default shall have occurred. If on any Business Day CSFB
determines that a Collateral Event of Default shall have occurred,
CSFB shall promptly notify Counterparty of such determination by
telephone call to Counterparty followed by a written confirmation of
such call. If on any Business Day CSFB determines that no Default
Event or failure by Counterparty to meet any of Counterparty's
obligations under "Certain Covenants of Counterparty relating to the
Collateral" or under this section has occurred and is continuing,
Counterparty may obtain the release from the security interests in
the Collateral created hereby of any Collateral upon delivery to
CSFB of a written notice from Counterparty indicating the iteros of
Collateral to be released so long as, after such release, no
Collateral Event of Default shall have occurred. "DEFAULT EVENT"
means any Collateral Event of Default, any Event of Default with
respect to Counterparty, any Default (as defined in the Credit
Agreement) pursuant to the Credit Agreement, or any Termination
Event with respect to which Counterparty is the Affected Party or an
Affected Party or any Extraordinary Event that results in an
obligation of Counterparty to pay an amount pursuant to Section 12.7
or Section 12.9 of the 2002 Definitions;
2. Counterparty may pledge additional Eligible Collateral hereunder at
any time by delivering the same pursuant to the provisions of
"Delivery of Collateral" above. Concurrently with the delivery of
any additional Eligible Collateral, Counterparty shall deliver to
CSFB a certificate, dated the date of such delivery, (i) identifying
the additional items of Eligible Collateral being pledged and (ii)
certifying that with respect to such items of additional Eligible
Collateral the representations and warranties contained in paragraph
4.c.5. above are true and correct with respect to such Eligible
Collateral on and as of the date thereof
3. Counterparty may at any time, so long as no Default Event has
occurred and is continuing, substitute Government Securities for all
(but not less than all) of the Collateral consisting of Shares then
held in or credited to the Collateral Account (the "SHARE
COLLATERAL") on the terms set forth below:
(A) At least five Business Days prior to the date of any
such substitution, Counterparty shall notify CSFB in
writing that Counterparty intends to effect such
substitution;
(B) Counterparty shall deliver to CSFB, in a manner
reasonably acceptable to CSFB, Government Securities
having a value at least equal to 105% of the market
value of the Share Collateral on the date of such
delivery (as determined by the Calculation Agent);
(C) Counterparty shall take all such other actions as CSFB
may reasonably require to create for the benefit of CSFB
a valid and perfected security interest in such
Government Securities, in respect of which CSFB will
have Control, subject to no prior Lien; and
(D) Counterparty shall make xxxx to market deliveries of
additional Government Securities on a daily basis, and
CSFB shall release Government Securities previously
pledged upon the request of Counterparty, so that the
value of the Government Securities pledged is at all
times at least equal to 105% of the market value of the
Share Collateral for such Transaction that would
otherwise have been pledged hereunder at such time (as
determined by the Calculation Agent), in
14
each case, pursuant to terms mutually acceptable to CSFB
and Counterparty.
4. CSFB may at any time or from time to time, in its sole discretion,
cause any or all of the Collateral that is registered in the name of
Counterparty or Counterparty's nominee to be transferred of record
into the name of the Custodian, CSFB or its nominee. Counterparty
shall promptly give to CSFB copies of any notices or other
communications received by Counterparty with respect to Collateral
that is registered, or held through a securities intermediary in the
name of Counterparty or Counterparty's nominee and CSFB shall
promptly give to Counterparty copies of any notices and
communications received by CSFB with respect to Collateral that is
registered, or held through a securities intermediary, in the name
of Custodian, CSFB or its nominee.
5. Counterparty agrees that Counterparty shall forthwith upon demand
pay to CSFB:
(i) the amount of any taxes that CSFB or the Custodian may have
been required to pay by reason of the security interests in
the Collateral created hereby or to free any of the Collateral
from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the
fees and disbursements of counsel and of any other experts,
that CSFB or the Custodian may incur in connection with (A)
the enforcement of this pledge, including such expenses as are
incurred to preserve the value of the Collateral and the
validity, perfection, rank and value of the security interests
in the Collateral created hereby, (B) the collection, sale or
other disposition of any of the Collateral, (C) the exercise
by CSFB of any of the rights conferred upon it hereunder or
(D) any Default Event.
Any such amount not paid on demand shall bear interest (computed on
the basis of a year of 360 days and payable for the actual number of
days elapsed) at a rate per annum equal to 3% plus the prime rate as
published from time to time in The Wall Street Journal, Eastern
Edition.
E. NO REHYPOTHECATION OF COLLATERAL:
The parties hereto agree that CSFB may not sell, lend, pledge,
rehypothecate, assign, invest, use, commingle or otherwise dispose of, or
otherwise use in its business any Collateral.
F. INCOME AND VOTING RIGHTS IN COLLATERAL:
CSFB shall have the right to receive and retain as Collateral hereunder
all proceeds, excluding any Excluded Proceeds, but including, without
limitation, any Extraordinary Dividend and interest of the Collateral;
provided that CSFB shall have such right with respect to any and all
proceeds, including without limitation any Excluded Proceeds, after the
occurrence and during the continuance of a Default Event (such proceeds as
CSFB shall have the right to receive and retain at any time, "RETAINED
PROCEEDS"), and Counterparty shall take all such action as CSFB shall deem
necessary or appropriate to give effect to such right. All such Retained
Proceeds that are received by Counterparty shall be received in trust for
the benefit of CSFB and, if CSFB so directs, shall be segregated from
other funds of Counterparty and shall, forthwith upon demand by CSFB, be
delivered over to the Custodian on behalf of CSFB as Collateral in the
same form as received (with any necessary endorsement).
15
Unless a Default Event shall have occurred and be continuing, Counterparty
shall have the right, from time to time, to vote and to give consents,
ratifications and waivers with respect to the Collateral.
If a Default Event shall have occurred and be continuing, CSFB shall have
the right, to the extent permitted by law, and Counterparty shall take all
such action as may be necessary or appropriate to give effect to such
right, to vote and to give consents, ratifications and waivers, and to
take any other action with respect to any or all of the Collateral with
the same force and effect as if CSFB were the absolute and sole owner
thereof.
G. REMEDIES UPON DEFAULT EVENTS:
If any Default Event shall have occurred and be continuing, CSFB may
exercise all the rights of a secured party under the UCC (whether or not
in effect in the jurisdiction where such rights are exercised) and, in
addition, without being required to give any notice, except as herein
provided or as may be required by mandatory provisions of law, may sell
all of the Collateral, or such lesser portion thereof as may be necessary
to generate proceeds sufficient to satisfy in full all of the obligations
of Counterparty under the Agreement or hereunder.
Counterparty hereby irrevocably appoints CSFB as Counterparty's true and
lawful attorney (which power of attorney is coupled with an interest),
with full power of substitution, in the name of Counterparty, CSFB or
otherwise, for the sole use and benefit of CSFB, but at the expense of
Counterparty, to the extent permitted by law, to exercise, at any time and
from time to time while a Default Event has occurred and is continuing,
all or any of the following powers with respect to all or any of the
Collateral:
(i) to demand, xxx for, collect, receive and give acquittance for any
and all monies due or to become due upon or by virtue thereof;
(ii) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto;
(iii) to sell, transfer, assign or otherwise deal in or with the same or
the proceeds or avails thereof, as fully and effectually as if CSFB
were the absolute owner thereof and in connection therewith, to make
all necessary deeds, bills of sale, instruments of assignment,
transfer or conveyance of the property, and all instructions and
entitlement orders in respect of the property thus to be (or that is
being or has been) sold, transferred, assigned or otherwise dealt
in; and
(iv) to extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto;
provided that CSFB shall give Counterparty not less than one day's prior
written notice of the time and place of any sale or other intended
disposition of any of the Collateral, except any Collateral that threatens
to decline speedily in value, including, without limitation, equity
securities, or is of a type customarily sold on a recognized market. CSFB
and Counterparty agree that such notice constitutes "reasonable
authenticated notification" within the meaning of Section 9-611(b) of the
UCC.
H. TERMINATION:
The rights hereby granted by Counterparty in the Collateral shall cease,
terminate and be
16
void upon fulfilment of all of the Secured Obligations. Any Collateral
remaining at the time of such termination shall be fully released and
discharged from the security interests in the Collateral created hereby
and delivered to Counterparty by CSFB, all at the request and expense of
Counterparty.
5. THE AGREEMENT IS FURTHER SUPPLEMENTED BY THE FOLLOWING PROVISIONS:
(a) TERMINATION PROVISIONS.
(i) "SPECIFIED ENTITY" means in relation to CSFB, none, and in relation
to Counterparty, none.
(ii) "SPECIFIED TRANSACTION" will have the meaning specified in Section
14 of the Agreement.
(iii) The "CROSS DEFAULT" provision of Section 5(a)(vi) of the Agreement
will apply to CSFB and will apply to Counterparty.
(iv) Without limiting the generality of clause (iii) above, an Event of
Default as defined in the Credit Agreement shall be an Event of
Default with respect to Counterparty under the Agreement.
For the purpose of such provision:
"SPECIFIED INDEBTEDNESS" means any obligation (whether present or future,
contingent or otherwise, as principal or surety or otherwise) (A) in
respect of borrowed money, or (B) in respect of any Specified Transaction
(except that, for this purpose only, the words "and any other entity"
shall be substituted for the words "and the other party to the Agreement
(or any Credit Support Provider of such other party or any applicable
Specified Entity of such other party)" where they appear in the definition
of Specified Transaction).
"THRESHOLD AMOUNT" means, with respect to Counterparty, USD 10,000,000
and, with respect to CSFB, USD 100,000,000 (in each case, including the
United States Dollar equivalent of obligations stated in any other
currency or currency unit).
(v) THE "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) of
the Agreement will not apply to CSFB and will apply to
Counterparty.
(vi) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) of the
Agreement will not apply to CSFB and Counterparty.
(vii) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of
the Agreement, Second Method and Loss will apply.
(viii) "TERMINATION CURRENCY" means United States Dollars.
(ix) NETTING. The provisions of Section 2(c) of the Agreement shall
apply, provided that Section 2(c) shall be amended by deleting
"and" at the end of clause (i) thereof and deleting clause (ii)
thereof.
(x) SET-OFF. In addition to and without limiting any rights of set-off
that a party hereto may have as a matter of law, pursuant to
contract or otherwise, upon (x) the occurrence or effective
designation of an Early Termination Date in respect of the
Transaction or (y) the occurrence of an Extraordinary Event that
results in
17
the cancellation or termination of the Transaction pursuant to
Section 12.2,12.3, 12.6 or 12.9 of the 2002 Definitions, such Party
("PARTY X") shall have the right to terminate, liquidate and
otherwise close out the transactions contemplated by this
Confirmation pursuant to the terms hereof, and to set off any
obligation that Party X or any affiliate of Party X may have to the
other party ("PARTY Y") hereunder, thereunder or otherwise,
including without limitation any obligation to make any release,
delivery or payment to Party Y pursuant to this Confirmation, any
Supplemental Confirmation, the Credit Agreement, or any other
agreement between Party X or any of its affiliates and Party Y,
against any right Party X or any of its affiliates may have against
Party Y, including without limitation any right to receive a payment
or delivery pursuant to this Confirmation, any Supplemental
Confirmation, the Credit Agreement, or any other agreement between
Party X or any of its affiliates and Party Y. In the case of a
set-off of any obligation to release, deliver or pay assets against
any right to receive assets of the same type, such obligation and
right shall be set off in kind. In the case of a set-off of any
obligation to release, deliver or pay assets against any right to
receive assets of any other type, the value of each of such
obligation and such right shall be determined by the Calculation
Agent and the result of such set-off shall be that the net obligor
shall pay or deliver to the other party an amount of cash or assets,
at the net obligor's option, with a value (determined, in the case
of a delivery of assets, by the Calculation Agent) equal to that of
the net obligation. In determining the value of any obligation to
release or deliver Shares or right to receive Shares, the value at
any time of such obligation or right shall be determined by
reference to the market value of the Shares at such time. If an
obligation or right is unascertained at the time of any such
set-off, the Calculation Agent may in good faith estimate the amount
or value of such obligation or right, in which case set-off will be
effected in respect of that estimate, and the relevant party shall
account to the other party at the time such obligation or right is
ascertained.
(b) TAX REPRESENTATIONS. None.
(c) AGREEMENTS TO DELIVER DOCUMENTS. For the purpose of Sections 4(a)(i) and
(ii) of the Agreement, each of CSFB and Counterparty agrees to deliver the
following documents, as applicable:
(i) Each of CSFB and Counterparty will deliver to the other party, upon
execution of this Confirmation, evidence reasonably satisfactory to
the other party as to the names, true signatures and authority of
the officers or officials signing this Confirmation and each
Supplemental Confirmation on its behalf.
Such documents shall be covered by the representation set forth in Section
3(d) of the Agreement.
(d) MISCELLANEOUS:
(i) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of the
Agreement:
Address for notices or communications to CSFB (other than by
facsimile) (for all purposes):
Address: Credit Suisse First Boston Capital LLC
c/o Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
00
Xxx Xxxx, XX 00000
Attn: Senior Legal Officer
Tel: 000-000-0000
Fax: 000-000-0000
With a copy to: Credit Suisse First Boston LLC
0 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
For payments and deliveries:
Attn: Xxxxxxx Xxxxxxxx
Tel: (000)000-0000
Fax: (000)000-0000
For all other communications:
Attn: Xxxx Xxxx
Tel.: (000)000-0000
Fax: (000)000-0000
Designated responsible employee for the purposes of Section
12(a)(iii) of the Agreement: Senior Legal Officer
Address for notices or communications to Counterparty:
Address: ICG Holdings, Inc.
000 Xxxx Xxxxx, Xxxxx 0
Xxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention:
Telex No.: Answerback:
Facsimile No.: Telephone No.:
(ii) The date and time of the Transaction will be furnished by CSFB to
Counterparty upon written request by Counterparty.
(iii) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO
THIS CONFIRMATION, ANY SUPPLEMENTAL CONFIRMATION OR ANY CREDIT
SUPPORT DOCUMENT. Each party (A) certifies that no representative,
agent or attorney of the other party has represented, expressly or
otherwise, that such other party would not, in the event of such a
suit action or proceeding, seek to enforce the foregoing waiver and
(B) acknowledges that it and the other party have been induced to
enter into this Confirmation by, among other things, the mutual
waivers and certifications in this Section.
(iv) SERVICE OF PROCESS. The parties irrevocably consent to service of
process given in the manner provided for notices in Section in
paragraph 5(d)(i) immediately above. Nothing in this Confirmation
will affect the right of either party to serve process in any other
manner permitted by law.
(v) THE AGREEMENT, CONFIRMATION AND EACH SUPPLEMENTAL CONFIRMATION
THEREUNDER WILL BE GOVERNED BY AND
19
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE (PROVIDED THAT AS TO
PLEDGED ITEMS LOCATED IN ANY JURISDICTION OTHER THAN THE STATE OF
NEW YORK, CSFB SHALL, IN ADDITION TO ANY RIGHTS UNDER THE LAWS OF
THE STATE OF NEW YORK, HAVE ALL OF THE RIGHTS TO WHICH A SECURED
PARTY IS ENTITLED UNDER THE LAWS OF LAW OF SUCH OTHER JURISDICTION).
EACH PARTY HEREBY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK. THE PARTIES HERETO HEREBY AGREE THAT THE
CUSTODIAN'S JURISDICTION, WITHIN THE MEANING OF SECTION 8-110(e) OF
THE UCC, INSOFAR AS IT ACTS AS A SECURITIES INTERMEDIARY HEREUNDER
OR IN RESPECT HEREOF, IS THE STATE OF NEW YORK
(vi) This Confirmation and each Supplemental Confirmation is not intended
and shall not be construed to create any rights in any person other
than Counterparty, CSFB and their respective successors and assigns
and no other person shall assert any rights as third-party
beneficiary hereunder. Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the
successors and assigns of such party. All the covenants and
agreements herein contained by or on behalf of Counterparty and CSFB
shall bind, and inure to the benefit of, their respective successors
and assigns whether so expressed or not.
(vii) Any provision of this Confirmation or any Supplemental Confirmation
may be amended or waived if, and only if, such amendment or waiver
is in writing and signed, and in the case of an amendment, by
Counterparty and CSFB or, in the case of a waiver, by the party
against whom the waiver is to be effective.
20
Please confirm that the foregoing correctly sets forth the terms of our
agreement by signing and returning this Confirmation.
Yours faithfully,
CREDIT SUISSE FIRST BOSTON CAPITAL LLC
By: /s/ Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
Title: A.V.P.
OPERATIONS
Confirmed as of the date first written above:
ICG HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: XXXXXX X. XXXXXX
Title: VICE PRESIDENT
CREDIT SUISSE FIRST BOSTON LLC, AS AGENT
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name: XXXXXXX XXXXX
Title: ASSISTANT VICE PRESIDENT
OPERATIONS
Our Reference Number: External ID: [ ] / Risk ID: [ ]
By its agent: Credit Suisse First Boston LLC
21
ANNEX A
FORM OF SUPPLEMENTAL CONFIRMATION
in respect of the
CONFIRMATION
of the
TRANSACTION
between
CREDIT SUISSE FIRST BOSTON CAPITAL LLC
and
ICG HOLDINGS, INC.
(CSFB Ref: [_____])
This Supplemental Confirmation (this "SUPPLEMENTAL CONFIRMATION") supplements,
forms part of and is subject to, the above-referenced Confirmation dated as of
[Date] (the "CONFIRMATION") between Credit Suisse First Boston Capital LLC and
ICG Holdings, Inc. and the Agreement referred to therein. Capitalized terms used
and not otherwise defined herein shall have the meanings ascribed to them in the
Confirmation.
The additional terms of the Transaction are as follows:
Trade Date: [______]
Number of Options: [______]
Call Strike Price: USD[_____]
Put Strike Price: USD[_____]
Premium: USD [______], which shall be paid by
[-] to [-] on the Premium Payment Date.
Premium Payment Date: [______]
First Averaging Date: [______]
