Convertible Note Documents. Make or cause to be made any cash payment or cash settlement in respect of any Permitted Convertible Notes, Permitted Bond Hedge Transactions or Permitted Warrant Transactions, except for: (a) Payment of (i) reasonable and customary fees and expenses (including, without limitation, any initial purchasers’ discount, any indemnification, contribution and other contractual obligations owed to any initial purchasers and any fees of financial advisors to the Borrower) incurred in connection with the Permitted Convertible Notes, Permitted Bond Hedge Transactions or Permitted Warrant Transactions and (ii) payment of cash in lieu of fractional shares in connection with the conversion of the Permitted Convertible Notes provided, however, that no such payments shall be permitted pursuant to this clause (a)(ii) if an Event of Default has occurred and is continuing or would result therefrom; (b) Payment of any regularly scheduled cash interest payments in respect of the Permitted Convertible Notes; provided, however, that no such payments shall be permitted pursuant to this clause (b) if an Event of Default has occurred and is continuing or would result therefrom; and (c) Payment of the initial purchase price for each Permitted Bond Hedge Transaction; provided that such purchase price less the proceeds received by the Borrower from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by the Borrower from the issuance of the Permitted Convertible Notes issued in connection with such Permitted Bond Hedge Transaction.”
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Convertible Note Documents. Make or cause to be made any cash payment or cash settlement in respect of any Permitted Convertible Notes, Permitted Bond Hedge Transactions or Permitted Warrant Transactions, except for:
(a) Payment of (i) reasonable and customary fees and expenses (including, without limitation, any initial purchasers’ discount, any indemnification, contribution and other contractual obligations owed to any initial purchasers and any fees of financial advisors to the Borrower) incurred in connection with the Permitted Convertible Notes, Permitted Bond Hedge Transactions or Permitted Warrant Transactions and (ii) payment of cash in lieu of fractional shares in connection with the conversion of the Permitted Convertible Notes provided, however, that no such payments shall be permitted pursuant to this clause (a)(ii) if an Event of Default has occurred and is continuing or would result therefrom;
(b) Payment of any regularly scheduled cash interest payments in respect of the Permitted Convertible Notes; provided, however, that no such payments shall be permitted pursuant to this clause (b) if an Event of Default has occurred and is continuing or would result therefrom; and
(c) Payment of the initial purchase price for each Permitted Bond Hedge Transaction; provided that such purchase price less the proceeds received by the Borrower from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by the Borrower from the issuance of the Permitted Convertible Notes issued in connection with such Permitted Bond Hedge Transaction.”
(i) Section 8.1(e) of the Credit Agreement is hereby amended and restated in its entirety as follows:
(i) any Group Member shall (A) default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Obligations) on the scheduled or original due date with respect thereto; (B) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (C) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (D) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (1) cause, or to permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in any of clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall have occurred with respect to Indebtedness, the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, individually or in the aggregate for all such Indebtedness, exceeds $500,000; or (ii) the occurrence of any event of default under any terms or provisions of any Convertible Note Document, or the occurrence of any event requiring the prepayment in cash of any Permitted Convertible Note (other than payments permitted pursuant to Section 7.25(c)); provided that this clause (e) shall not apply to any conversion of the Permitted Convertible Notes into common stock of the Borrower (or other securities following a merger event, reclassification or other change of the common stock of the Borrower) and cash in lieu of fractional shares of common stock of the Borrower, or the satisfaction or occurrence of any condition the sole result of which is to give rise such conversion or a right on behalf of the holders of the Permitted Convertible Notes to require such conversion; or”
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