Common use of Convertible Notes Clause in Contracts

Convertible Notes. (a) (I) Amend or modify any of the terms of any of the Existing Convertible Note Documents if such amendment or modification would add or change any terms in a manner that, taken as a whole, is materially adverse to the Borrower or any of its Subsidiaries (including, without limitation, any amendment or modification that would (i) shorten the final maturity or average life to maturity, (ii) require any payment to be made sooner than originally scheduled (including in connection with a conversion) or increase the interest rate applicable thereto or (iii) modify the method of calculating the amount payable upon the optional or mandatory redemption of, or the conversion of, the Existing Convertible Notes from the method contained in the Existing Convertible Note Documents); or (II) amend or modify any terms of any of the Additional Convertible Note Documents if such amendment or modification would add or change any terms related to the amount or timing of any cash payment to be made by the Borrower with respect thereto in a manner that, taken as a whole, is materially adverse to the Borrower or any of its Subsidiaries (including, without limitation, any amendment or modification that would (i) shorten the final maturity or average life to maturity, (ii) require any payment to be made sooner than originally scheduled (including in connection with a conversion) or increase the interest rate applicable thereto or (iii) modify the method of calculating the amount payable upon the optional or mandatory redemption of, or the conversion of, the Additional Convertible Notes from the method contained in the Additional Convertible Note Documents); but excluding in each case for clauses (I) and (II) above any amendment or modification required by the Convertible Note Documents that would not require the consent of any holder of Convertible Notes under the Convertible Note Documents; (b) Amend or modify any of the subordination provisions of the Existing Convertible Note Documents; or (c) Make any payments of principal or interest in respect of the Existing Convertible Notes in contravention of the subordination provisions thereof (other than solely with the proceeds of the Convertible Notes Escrow Account).

Convertible Notes. (a) (IOn the Closing Date, Parent, Merger Sub and the Company shall, as and to the extent required by the Convertible Notes Indenture, execute, and use reasonable best efforts to cause the Trustee to execute, any supplemental indenture(s) Amend or modify required by the Convertible Notes Indenture as a result of the Merger and deliver any of certificates and other documents required by the Convertible Notes Indenture to be delivered by such persons in connection with such supplemental indenture(s). Notwithstanding anything to the contrary in this Agreement and subject to the immediately preceding sentence, prior to the Effective Time, the Company shall give any notices and take all actions required under the terms of any the Convertible Notes or the Convertible Notes Indenture as a result of the Existing Merger, which actions shall include, without limitation, the Company (or its Subsidiaries or other Representatives, as applicable) (i) giving any notices that may be required in connection with the Merger and the other transactions contemplated by this Agreement and settling any conversions of the Convertible Note Documents if such amendment Notes occurring prior to or modification would add or change any terms in a manner that, taken as a wholeresult of the Merger in accordance with the terms of the Convertible Notes Indenture, is materially adverse (ii) preparing any supplemental indentures required in connection with the Merger and the other transactions contemplated by this Agreement and the consummation thereof to be executed and delivered to the Borrower Trustee at or any of its Subsidiaries prior to the Effective Time, in form and substance reasonably satisfactory to the Trustee and Parent, and (iii) taking all such further actions, including, without limitation, delivering any amendment or modification that would (i) shorten officer’s certificates and legal opinions, as are necessary to comply with all of the final maturity or average life to maturity, (ii) require any payment to be made sooner than originally scheduled (including terms and conditions of the Convertible Notes Indenture in connection with a conversion) or increase the interest rate applicable thereto or (iii) modify Merger and the method of calculating other transactions contemplated by this Agreement. Notwithstanding anything to the amount payable upon contrary in this Agreement, prior to the optional or mandatory redemption of, or the conversion ofEffective Time, the Existing Company will settle conversions, if any, of the Convertible Notes from as required pursuant to the method contained in the Existing Convertible Note Documents); or (II) amend or modify any terms of the Convertible Notes Indenture. For the avoidance of doubt, the transactions contemplated by this Agreement, wherever referred to in Section 6.1 of this Agreement, shall be deemed to include effecting settlements of any conversions under the terms of the Additional Convertible Note Documents if such amendment or modification would add or change any terms related to the amount or timing of any cash payment to be made by the Borrower with respect thereto in a manner that, taken as a whole, is materially adverse to the Borrower or any of its Subsidiaries (including, without limitation, any amendment or modification that would (i) shorten the final maturity or average life to maturity, (ii) require any payment to be made sooner than originally scheduled (including in connection with a conversion) or increase the interest rate applicable thereto or (iii) modify the method of calculating the amount payable upon the optional or mandatory redemption of, or the conversion of, the Additional Convertible Notes from the method contained in the Additional Convertible Note Documents); but excluding in each case for clauses (I) and (II) above any amendment or modification required by the Convertible Note Documents that would not require the consent of any holder of Convertible Notes under the Convertible Note Documents;Indenture. (b) Amend The Company shall provide Parent and its counsel at least three (3) Business Days to review and comment on any notices, certificates, press releases, supplemental indentures, or modify any of the subordination provisions of the Existing Convertible Note Documents; or (c) Make any payments of principal other documents or interest in respect of the Existing Convertible Notes in contravention of the subordination provisions thereof (other than solely with the proceeds of instruments deliverable pursuant to the Convertible Notes Escrow Account)Indenture prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by Parent and its counsel with respect thereto.

Convertible Notes. (a) At and prior to the Closing, the Company shall comply in a timely manner with all of the provisions of the Indenture and Capped Call Confirmations and all applicable Legal Requirements in connection therewith, in each case, applicable to the Company, including executing and delivering any supplemental indenture(s) to the Indenture in connection with the Merger, the delivery, issuance or entry into any notices, certificates or other documents or instruments required to comply with the Indenture or Capped Call Confirmations; provided, that (Ii) Amend the Company shall deliver a copy of any such supplemental indenture, notice, certificate or modify any other document to Parent reasonably in advance of delivering or entering into such supplemental indenture, notice, certificate or other document in accordance with the terms of the Indenture or Capped Call Confirmations and (ii) prior to the Closing, the Company shall not, except as otherwise set forth in this Section 5.8, amend, modify, supplement or terminate the Indenture or take any of the Existing Convertible Note Documents if such amendment or modification action that would add or change any terms result in a manner that, taken as a whole, is materially adverse change to the Borrower or any of its Subsidiaries Conversion Rate (includingas defined in the Indenture as in effect on the date hereof), in each case, without limitationthe prior written consent of Parent, any amendment such consent not to be unreasonably withheld, conditioned or modification that would delayed. (b) Prior to the Effective Time, the Company shall (i) shorten take all actions reasonably requested by Parent in connection with making elections under, amending, negotiating adjustments, obtaining waivers or unwinding the final maturity Capped Call Confirmations or average life to maturityotherwise settling the Capped Call Confirmations effective as of on or after the Effective Time, (ii) require promptly advise Parent of any notices or other communications with the counterparties to the Capped Call Confirmations in respect of any settlement or termination thereof or adjustment thereto (including notices of adjustments received by the Company arising out of an Announcement Event (as defined in the Capped Call Confirmations)), and (iii) cooperate with Parent with respect to its efforts to settle, terminate or amend the Capped Call Confirmations effective as of on or after the Effective Time and the negotiation of any adjustment, termination or settlement payment or valuation related thereto or the negotiation of any amendment thereto, as applicable; provided, that the Company shall not agree to amend, modify or supplement the terms relating to any Capped Call Confirmation, or affirmatively agree to any adjustment thereto or amount due upon the termination or settlement thereof, in each case, without the prior written consent of Parent, such consent not to be made sooner than originally scheduled (including unreasonably withheld, conditioned or delayed. If requested by Parent, the Company shall engage a hedging advisor in connection with a conversionthe actions set forth in this Section 5.8(b); provided that such hedging advisor shall be reasonably acceptable to the Company; provided, further, that all fees and costs of any such hedging advisor that are not contingent upon the occurrence of the Closing or are payable prior to the Closing, shall be at Parent’s sole cost and expense. The Company shall not enter into any binding agreements in respect of the Capped Call Confirmations without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). (c) Notwithstanding the foregoing, nothing in this Section 5.8 shall require the Company to (i) pay any fees, incur or increase reimburse any costs or expenses, or make any payment in connection with the interest rate applicable thereto Indenture or any Capped Call Confirmation prior to the occurrence of the Effective Time (other than to the extent expressly required under the Indenture or any Capped Call Confirmation or for which Parent agrees to reimburse the Company), (ii) enter into or effect any settlement, termination, instrument or agreement, or agree to any settlement, termination or any other change or modification to any instrument or agreement, in each case with respect to the Indenture or any Capped Call Confirmation, that is effective prior to the occurrence of the Effective Time, or (iii) modify refrain from delivering, or delay the method of calculating the amount payable upon the optional or mandatory redemption delivery of, or the conversion of, the Existing Convertible Notes from the method contained in the Existing Convertible Note Documents); or (II) amend or modify any terms of any of the Additional Convertible Note Documents if such amendment or modification would add or change any terms related to the amount or timing of any cash payment to be made by the Borrower with respect thereto in a manner that, taken as a whole, is materially adverse to the Borrower or any of its Subsidiaries (including, without limitation, any amendment or modification that would (i) shorten the final maturity or average life to maturity, (ii) require any payment to be made sooner than originally scheduled (including in connection with a conversion) or increase the interest rate applicable thereto or (iii) modify the method of calculating the amount payable upon the optional or mandatory redemption of, or the conversion of, the Additional Convertible Notes from the method contained in the Additional Convertible Note Documents); but excluding in each case for clauses (I) and (II) above any amendment or modification notice required by the Convertible Note Documents terms of the Indenture or the Capped Call Confirmations (it being understood that would not require the consent Company will provide Parent with prior notice of any holder of Convertible Notes under such delivery with an opportunity to comment on the Convertible Note Documents; (b) Amend or modify any of the subordination provisions of the Existing Convertible Note Documents; or (c) Make any payments of principal or interest in respect of the Existing Convertible Notes in contravention of the subordination provisions thereof (other than solely with the proceeds of the Convertible Notes Escrow Accountrelevant notice).

Convertible Notes. (a) (I) Amend or modify any Promptly following the execution and delivery of the terms this Agreement, Target and Buyer shall use their reasonable best efforts to cause each holder of any of the Existing a Convertible Note Documents if such amendment or modification would add or change any terms to enter into an agreement and/or instrument with Target in a manner that, taken as a whole, is materially adverse form reasonably satisfactory to the Borrower or any of its Subsidiaries (including, without limitation, any amendment or modification that would Target and Buyer (i) shorten that permits Buyer to purchase such Convertible Note at or immediately prior to the final maturity Closing for cash in an amount equal to the sum of (x) the amount that would have been payable in the Merger for the Target Common Shares underlying such Convertible Note had such Convertible Note been fully converted into Target Common Shares immediately prior to the Closing and (y) any accrued and unpaid interest on such Convertible Note as of the Closing, but not including any prepayment premium or average life to maturitypenalty, and (ii) require any that provides, subject to such payment to be made sooner than originally scheduled at the Closing, for (including in connection with a conversionu) or increase the interest rate applicable thereto or (iii) modify termination of the method of calculating the amount payable Exchange and Purchase Agreement upon the optional or mandatory redemption ofClosing, or (v) the conversion of, due transfer of the Existing Convertible Notes from the method contained in the Existing underlying Convertible Note Documents); or (II) amend or modify any terms of any of to Buyer upon the Additional Convertible Note Documents if such amendment or modification would add or change any terms related to the amount or timing of any cash payment to be made by the Borrower with respect thereto in a manner that, taken as a whole, is materially adverse to the Borrower or any of its Subsidiaries (including, without limitation, any amendment or modification that would (i) shorten the final maturity or average life to maturityClosing, (iiw) require any payment to be made sooner than originally scheduled (including in connection with a conversion) or increase the interest rate applicable thereto or (iii) modify the method of calculating the amount payable upon the optional or mandatory redemption of, or the conversion of, the Additional Convertible Notes from the method contained in the Additional Convertible Note Documents); but excluding in each case for clauses (I) and (II) above any amendment or modification required by the Convertible Note Documents that would not require the consent of any holder of Convertible Notes under the Convertible Note Documents; (b) Amend or modify any of the subordination provisions of the Existing Convertible Note Documents; or (c) Make any payments of principal or interest in respect of the Existing Convertible Notes in contravention of the subordination provisions thereof (other than solely with the proceeds termination of the Convertible Notes Escrow AccountIndenture (which agreement shall constitute a written consent contemplated by Section 9.02 of the Convertible Notes Indenture), (x) the amendment of the Convertible Notes Indenture to terminate and waive Article 4, other than Sections 4.01, 4.02 and 4.04(c) thereof, and Article 5 of such Indenture (including with respect to the Merger) at the Closing and until such time as the Convertible Notes Indenture is terminated in accordance with its terms (which agreement shall constitute a written consent contemplated by Section 9.02 of the Convertible Notes Indenture), (y) the Collateral Agent to release and terminate all Liens related to the Convertible Notes and to join in the termination of the Collateral Documents at the Closing and (z) such Convertible Note holder to join in all actions necessary and appropriate to cause the termination of the Intercreditor Agreement and the Collateral Documents at the Closing (a "CN Agreement"). Subject to the performance of the respective CN Agreement, Buyer shall at Closing make or cause to be made any and all payments contemplated by this Section with respect to the Convertible Notes that are the subject of such CN Agreement.

Convertible Notes. (a) (I) Amend or modify any of the terms of any of the Existing Convertible Note Documents if such amendment or modification would add or change any terms in a manner that, taken as a whole, is materially adverse to the Borrower or any of its Subsidiaries (including, without limitation, any amendment or modification that would (i) shorten At any time prior to Stockholder Approval (as such term is defined in the final maturity Securities Purchase Agreement) and the automatic conversion of the Convertible Notes, the occurrence of an event described in clause (i) of the term “Event” (as such term is defined in the Securities Purchase Agreement) or average life the entitlement of any person to maturity, any “Event Payments” (as such term is defined in the Securities Purchase Agreement) in connection with such clause (ii) require any payment to be made sooner than originally scheduled (including in connection with a conversion) or increase the interest rate applicable thereto or (iii) modify the method of calculating the amount payable upon the optional or mandatory redemption of“Event”, or the conversion of, the Existing Convertible Notes from the method contained in the Existing Convertible Note Documents); or (II) amend or modify any terms of any of the Additional Convertible Note Documents if such amendment or modification would add or change any terms related to the amount or timing of any cash payment to be made by the Borrower with respect thereto in a manner that, taken as a whole, is materially adverse to the Borrower or any of its Subsidiaries (including, without limitation, any amendment or modification that would (i) shorten the final maturity or average life to maturity, (ii) require any payment to be made sooner than originally scheduled (including in connection with a conversion) or increase the interest rate applicable thereto or (iii) modify the method of calculating the amount payable upon the optional or mandatory redemption of, or the conversion of, the Additional Convertible Notes from the method contained in the Additional Convertible Note Documents); but excluding in each case for clauses (I) and (II) above any amendment that has not been waived or modification required deferred by the Convertible Note Documents that would not require the consent of any holder of Convertible Notes under the Convertible Note Documents; (b) Amend or modify any of the subordination provisions of the Existing Convertible Note Documents; or (c) Make any payments of principal or interest in respect of the Existing Convertible Notes in contravention of the subordination provisions thereof (other than solely with the proceeds holders of the Convertible Notes Escrow Accountuntil after Stockholder Approval and such conversion, or (ii) any Loan Party or any Subsidiary thereof (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Convertible Note or the Securities Purchase Agreement (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement), or (B) fails to observe or perform any other agreement or condition relating to any Convertible Note or the Securities Purchase Agreement or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, in each case the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of any Guarantee thereof (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded.”