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Exhibit 4.5
THE SECURITIES REPRESENTED HEREBY (THE
“WARRANTS”) WERE ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND THE
WARRANTS MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF.
Bank of America, N.A.
c/o Banc of America Securities
LLC
9 West 57th Street
New York, NY 10019
Attention: John Servidio
Telephone No.:
(212) 847-6527
Facsimile No.:
(212) 230-8610
April 1, 2008
To: SVB Financial Group
3003 Tasman Drive
Santa Clara, California
95054-1191
Attention: Treasurer
Telephone No.:
(408) 654-7483
Facsimile No.: (408)
654-3085
Re: Warrants (Transaction Reference
Number: NY-34118)
The purpose of this letter
agreement (this “ Confirmation ”) is to confirm
the terms and conditions of the Warrants issued by SVB Financial
Group (“ Company ”) to Bank of America, N.A.
(“ Bank ”) on the Trade Date specified below
(the “ Transaction ”). This letter agreement
constitutes a “Confirmation” as referred to in the ISDA
Master Agreement specified below. This Confirmation shall replace
any previous agreements and serve as the final documentation for
this Transaction.
The definitions and
provisions contained in the 2002 ISDA Equity Derivatives
Definitions (the “ Equity Definitions ”), as
published by the International Swaps and Derivatives Association,
Inc. (“ ISDA ”), are incorporated into this
Confirmation. In the event of any inconsistency between the Equity
Definitions and this Confirmation, this Confirmation shall govern.
This Transaction shall be deemed to be a Share Option Transaction
within the meaning set forth in the Equity Definitions.
Each party is hereby advised,
and each such party acknowledges, that the other party has engaged
in, or refrained from engaging in, substantial financial
transactions and has taken other material actions in reliance upon
the parties’ entry into the Transaction to which this
Confirmation relates on the terms and conditions set forth
below.
1. This Confirmation evidences a
complete and binding agreement between Bank and Company as to the
terms of the Transaction to which this Confirmation relates. This
Confirmation shall supplement, form a part of, and be subject to an
agreement in the form of the 2002 ISDA Master Agreement (the
“ Agreement ”) as if Bank and Company had
executed an agreement in such form (but without any Schedule except
for the election of the laws of the State of New York as the
governing law) on the Trade Date. In the event of any inconsistency
between provisions of that Agreement and this Confirmation, this
Confirmation will prevail for the purpose of the Transaction to
which this Confirmation relates. The parties hereby agree that no
Transaction other than the Transaction to which this Confirmation
relates shall be governed by the Agreement.
2. The Transaction is a Warrant
Transaction, which shall be considered a Share Option Transaction
for purposes of the Equity Definitions. The terms of the particular
Transaction to which this Confirmation relates are as
follows:
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| General
Terms: |
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Trade Date:
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April 1,
2008 |
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Warrants:
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Equity
call warrants, each giving the holder the right to purchase one
Share at the Strike Price, subject to the Settlement Terms set
forth below. For the purposes of the Equity Definitions, each
reference to a Warrant herein shall be deemed to be a reference to
a Call Option. |
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Warrant Style:
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European |
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Seller:
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Company |
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Buyer:
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Bank |
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Shares:
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The
common stock of Company, par value USD 0.001 per Share (Exchange
symbol “SIVB”) |
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Number of Warrants:
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1,885,250, subject to adjustment as provided
herein. |
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Warrant Entitlement:
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One Share
per Warrant |
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Strike Price:
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USD
64.42500 |
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Premium:
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USD
8,480,000.00 |
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Premium Payment Date:
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April 7,
2008 |
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Exchange:
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The
NASDAQ Global Select Market |
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Related Exchange(s):
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All
Exchanges located in the United States |
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for Exercise: |
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Expiration Time:
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The
Valuation Time |
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Expiration Date(s):
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Each
Scheduled Trading Day during the period from and including the
First Expiration Date and to and including the 60
th
Scheduled Trading Day
following the First Expiration Date shall be an “Expiration
Date” for a number of Warrants equal to the Daily Number of
Warrants on such date; provided that, notwithstanding
anything to the contrary in the Equity Definitions, if any such
date is a Disrupted Day, the Calculation Agent shall make
adjustments, if applicable, to the Daily Number of Warrants or
shall reduce such Daily Number of Warrants to zero for which such
day shall be an Expiration Date and shall designate a Scheduled
Trading Day or a number of Scheduled Trading Days as the Expiration
Date(s) for the remaining Daily Number of Warrants or a portion
thereof for the originally scheduled Expiration Date (but in no
event shall any Expiration Date, as so extended, be any later than
November 3, 2011); and provided further that if such
Expiration Date has not occurred pursuant to this clause as of the
eighth Scheduled Trading Day following the last scheduled
Expiration Date under this Transaction, the Calculation Agent shall
have the right to declare |
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such
Scheduled Trading Day to be the final Expiration Date and the
Calculation Agent shall determine its good faith estimate of the
fair market value for the Shares as of the Valuation Time on that
eighth Scheduled Trading Day or on any subsequent Scheduled Trading
Day, as the Calculation Agent shall determine using commercially
reasonable means. |
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First Expiration Date:
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July 15, 2011 (or if such day is not a Scheduled Trading
Day, the next following Scheduled Trading Day), subject to Market
Disruption Event below. |
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Daily Number of Warrants:
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For any
Expiration Date, the Number of Warrants that have not expired or
been exercised as of such day, divided by the remaining
number of Expiration Dates (including such day), rounded down to
the nearest whole number, subject to adjustment pursuant to the
provisos to “Expiration Date(s)”. |
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Automatic Exercise:
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Applicable; and means that a number of Warrants for each
Expiration Date equal to the Daily Number of Warrants (as adjusted
pursuant to the terms hereof) for such Expiration Date will be
deemed to be automatically exercised; provided that
“In- the-Money” means that the Relevant Price for such
Expiration Date exceeds the Strike Price for such Expiration Date;
and provided further that all references in Section 3.4(b)
of the Equity Definitions to “Physical Settlement”
shall be read as references to “Net Share
Settlement”. |
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Market Disruption Event:
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Section
6.3(a)(ii) of the Equity Definitions is hereby amended by replacing
clause (ii) in its entirety with “(ii) an Exchange
Disruption, or” and inserting immediately following clause
(iii) the phrase “; in each case that the Calculation Agent
reasonably determines is material.” |
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| Valuation: |
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Valuation Time:
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Scheduled
Closing Time; provided that if the principal trading session
is extended, the Calculation Agent shall determine the Valuation
Time in its reasonable discretion. |
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Valuation Date:
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Each
Exercise Date. |
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| Settlement
Terms: |
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Settlement Method:
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Net Share
Settlement; provided that Cash Settlement shall apply if
Company validly elects Cash Settlement pursuant to the provisions
of “Cash Settlement Election” below. |
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Net Share Settlement:
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On the
relevant Settlement Date, Company shall deliver to Bank the Share
Delivery Quantity of Shares for such Settlement Date to the account
specified hereto free of payment through the Clearance
System. |
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Share Delivery Quantity:
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For any
Settlement Date, a number of Shares, as calculated by the
Calculation Agent, equal to the Net Share Settlement Amount for
such Settlement Date divided by the Settlement Price on the
Valuation Date in respect of such Settlement Date, rounded down to
the nearest whole number plus any Fractional Share
Amount. |
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Net Share Settlement Amount:
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For any
Settlement Date, an amount equal to the product of (i) the Number
of Warrants exercised or deemed exercised on the relevant Exercise
Date, (ii) the Strike Price Differential for such Settlement Date
and (iii) the Warrant Entitlement. |
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Settlement Price:
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For any
Valuation Date, the per Share volume-weighted average price as
displayed under the heading “Bloomberg VWAP” on
Bloomberg page SIVB.UQ <equity> AQR (or any successor
thereto) in respect of the period from the scheduled opening time
of the Exchange to the Scheduled Closing Time on such Valuation
Date (or if such volume-weighted average price is unavailable, the
market value of one Share on such Valuation Date, as reasonably
determined by the Calculation Agent). Notwithstanding the
foregoing, if (i) any Expiration Date is a Disrupted Day and (ii)
the Calculation Agent reasonably determines that such Expiration
Date shall be an Expiration Date for fewer than the Daily Number of
Warrants, as described above, then the Settlement Price for the
relevant Valuation Date shall be the volume-weighted average price
per Share on such Valuation Date on the Exchange, as reasonably
determined by the Calculation Agent based on such sources as it
deems appropriate using a volume-weighted average methodology, for
the portion of such Valuation Date for which the Calculation Agent
determines there is no Market Disruption Event. |
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Settlement Date(s):
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As
determined in reference to Section 9.4 of the Equity Definitions,
subject to Section 9(k)(i) hereof. |
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Cash Settlement Election:
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Company
may elect Cash Settlement by delivering a written notice to Bank
(the “Cash Settlement Notice” ) on or
prior to the fifth (5 th )
scheduled Exchange Business Day immediately preceding the First
Expiration Date, which Cash Settlement Notice shall
contain: |
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(i) a
representation that (x) on the date of such Cash Settlement Notice,
neither Company nor any of its affiliates is in possession of any
material non-public information with respect to Company or its
Shares, (y) the Company is electing Cash Settlement in good faith
and not as part of a plan or scheme to evade the prohibitions of
Rule 10b-5 under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and (z) Company has
not entered into or altered any hedging transaction relating to the
Shares corresponding to or offsetting the Transaction; |
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(ii) a
representation that the Company is not electing Cash Settlement to
create actual or apparent trading activity in the Shares (or any
security convertible into or exchangeable for the Shares) or to
raise or depress or otherwise manipulate the price of the Shares
(or any security convertible into or exchangeable for the
Shares); |
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(iii) an
acknowledgment by Company that (A) any transaction by Bank
following Company’s election of Cash Settlement shall be made
at Bank’s sole discretion and for Bank’s own account
and (B) Company does not have, and shall not attempt to exercise,
any influence over how, when, whether or at what price to effect
such transactions, including, without limitation, the price paid or
received per Share pursuant to such transactions, or whether such
transactions are made on any securities exchange or privately;
and |
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(iv) an
agreement by Company that, during the period commencing on the date
of such Cash Settlement Notice and ending on the second Exchange
Business Day following the last Settlement Date hereunder, without
the prior written consent of Bank, Company shall not, and shall
cause its affiliates and affiliated purchasers (each as defined in
Rule 10b-18 under the Exchange Act) not to, directly or indirectly
(including, without limitation, by means of a derivative
instrument), purchase, offer to purchase, place any bid or limit
order that would effect a purchase of, or commence any tender offer
relating to, any Shares or any security convertible into or
exchangeable for the Shares in the public markets. |
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Cash Settlement:
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If Cash
Settlement is applicable, on each Settlement Date, the Company
shall deliver to Bank (to an account specified by Bank) the Net
Share Settlement Amount for such Settlement Date. |
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In
addition to any other requirements set forth herein, Company agrees
that it shall not have the right to elect Cash Settlement if Bank
notifies Company that, in the reasonable judgment of Bank the
election of Cash Settlement or any purchases of Shares that Bank
(or its affiliates) might make in connection therewith based upon
the advice of counsel and as a result of events occurring after the
Trade Date, would raise material risks under applicable securities
laws. |
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Other Applicable Provisions:
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The
provisions of Sections 9.1(c), 9.8, 9.9, 9.11, 9.12 and 10.5 of the
Equity Definitions will be applicable, except that all references
in such provisions to “Physically-settled” shall be
read as references to “Net Share Settled.” “Net
Share Settled” in relation to any Warrant means that Net
Share Settlement is applicable to that Warrant. |
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Representation and Agreement:
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Notwithstanding Section 9.11 of the Equity Definitions, the
parties acknowledge that any Shares delivered to Bank may be, upon
delivery, subject to restrictions and limitations arising from
Company’s status as issuer of the Shares under applicable
securities laws. |
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| 3. Additional Terms applicable to the Transaction: |
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Adjustments applicable to the Warrants:
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Method of Adjustment:
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Calculation Agent Adjustment. For the avoidance of doubt, in
making any adjustments under the Equity Definitions, the
Calculation Agent may make adjustments, if any, to any one or more
of the Strike Price, the Number of Warrants, the Daily Number of
Warrants and the Warrant Entitlement. Notwithstanding the
foregoing, (i) any cash dividends or |
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distributions on the Shares, whether or not extraordinary,
shall be governed by Section 9(f) of this Confirmation in lieu of
Article 10 or Section 11.2(c) of the Equity Definitions and (ii)
Section 11.2(e)(v) of the Equity Definitions is hereby deleted in
its entirety and replaced with the following: “a repurchase
by the Issuer or any of its subsidiaries of more than 15% of the
outstanding Shares in the aggregate following the date hereof or a
tender offer by the Issuer or any of its subsidiaries of relevant
Shares, whether out of profits or capital and whether the
consideration for such repurchase or tender offer is cash,
securities or otherwise”. |
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Extraordinary Events applicable to the Transaction:
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New Shares:
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Section
12.1(i) of the Equity Definitions is hereby amended by deleting the
text in clause (i) in its entirety and replacing it with the phrase
“publicly quoted, traded or listed on any of the New York
Stock Exchange, the American Stock Exchange, The NASDAQ Global
Select Market or The NASDAQ Global Market (or their respective
successors)”. |
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Consequence of Merger Events:
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Merger Event:
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Applicable; provided that if an event occurs that
constitutes both a Merger Event under Section 12.1(b) of the Equity
Definitions and an Additional Termination Event under Section
9(h)(ii)(A) of this Confirmation, Bank may elect, in its
commercially reasonable judgment, whether the provisions of Section
12.1(b) of the Equity Definitions or Section 9(h)(ii)(A) will
apply. |
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Share-for-Share:
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Modified
Calculation Agent Adjustment |
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Share-for-Other:
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Cancellation and Payment (Calculation Agent
Determination) |
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Share-for-Combined:
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Cancellation and Payment (Calculation Agent Determination);
provided that Bank may elect, in its commercially reasonable
judgment, Component Adjustment (Calculation Agent
Determination). |
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Consequence of Tender Offers:
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Tender Offer:
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Applicable; provided that for the purposes of Section
12.3(d)(ii) of the Equity Definitions, references in the definition
of Tender Offer under the Equity Definitions to “10%”
shall be replaced with “20%”; provided further
that if an event occurs that constitutes both a Tender Offer under
Section 12.1(d) of the Equity Definitions and Additional
Termination Event under Section 9(h)(ii)(C) of this Confirmation,
Bank may elect, in its commercially reasonable judgment, whether
the provisions of Section 12.3 of the Equity Definitions or Section
9(h)(ii)(C) will apply. |
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Share-for-Share:
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Modified
Calculation Agent Adjustment |
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Share-for-Other:
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Modified
Calculation Agent Adjustment |
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Share-for-Combined:
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Modified
Calculation Agent Adjustment |
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Nationalization, Insolvency or Delisting:
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Cancellation and Payment (Calculation Agent Determination);
provided that, in addition to the provisions of Section
12.6(a)(iii) of the Equity Definitions, it will also constitute a
Delisting if the Exchange is located in the United States and the
Shares are not immediately re-listed, re-traded or re-quoted on any
of the New York Stock Exchange, the American Stock Exchange, The
NASDAQ Global Select Market or The NASDAQ Global Market (or their
respective successors); if the Shares are immediately re-listed,
re-traded or re-quoted on any of the New York Stock Exchange, the
American Stock Exchange, The NASDAQ Global Select Market or The
NASDAQ Global Market (or their respective successors), such
exchange or quotation system shall thereafter be deemed to be the
Exchange. |
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Additional Disruption Events:
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Change in Law:
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Applicable; provided that Section 12.9(a)(ii) of the
Equity Definitions is hereby amended by (i) replacing the phrase
“the interpretation” in the third line thereof with the
phrase “or announcement or statement of the formal or
informal interpretation” and (ii) immediately following the
word “Transaction” in clause (X) thereof, adding the
phrase “in the manner contemplated by the Hedging Party on
the Trade Date”. |
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Failure to Deliver:
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Not
Applicable; provided that Company is not obligated to
deliver the relevant Shares under the Transaction by book-entry
transfer through the facilities of DTC, or any successor
depositary, if such facilities are not available at the time of
delivery. |
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Insolvency Filing:
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Applicable |
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Hedging Disruption:
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Not
Applicable |
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Increased Cost of Hedging:
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Not
Applicable |
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Loss of Stock Borrow:
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Applicable |
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Maximum Stock Loan Rate:
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200 basis
points |
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Increased Cost of Stock Borrow:
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Not
Applicable |
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Hedging Party:
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Bank for
all applicable Additional Disruption Events |
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Determining Party:
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Bank for
all applicable Extraordinary Events |
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Non-Reliance:
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Applicable |
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Agreements and Acknowledgments
Regarding Hedging Activities:
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Applicable |
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Additional Acknowledgments:
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Applicable |
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| 4.
Calculation Agent: |
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Bank;
provided that all determinations made by the Calculation
Agent shall be made in good faith and in a commercially reasonable
manner. Following any calculation by the Calculation Agent
hereunder and a prior written request by Company, the Calculation
Agent will provide to Company by e-mail to the e- mail address
provided by Company in such prior written request a report (in a
commonly used file format for the storage and manipulation of
financial data) displaying in reasonable detail the basis for such
calculation. For the avoidance of doubt, nothing in this provision
will require Bank to provide its proprietary models to
Company. |
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5. Account Details:
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(a) |
Account for payments to Company: |
Bank Name: Silicon Valley
Bank
Account Name: SVB Financial
Group
ABA : 121140399
Account #:
0101035270
Account for delivery of
Shares from Company:
DTC Participant #:
901/334250/Silicon Valley Bancshares
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(b) |
Account for payments to Bank: |
Bank of America,
N.A.
New York, NY
SWIFT: BOFAUS3N
Bank Routing:
026-009-593
Account Name: Bank of
America
Account No. :
0012333-34172
Account for delivery of
Shares to Bank:
To be provided by
Bank.
6. Offices:
The Office of Company for the
Transaction is: Inapplicable, Company is not a Multibranch
Party.
The Office of Bank for the Transaction
is: New York
7. Notices: For purposes of this
Confirmation:
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(a) |
Address for notices or communications to Company: |
SVB Financial
Group
3003 Tasman Drive
Santa Clara, California
95054-1191
Attention:
Treasurer
Telephone No.:
(408) 654-7483
Facsimile No.: (408)
654-3085
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(b) |
Address for notices or communications to Bank: |
Bank notice information to
follow:
Bank of America,
N.A.
c/o Banc of America
Securities LLC
Equities Legal
Department
9 West 57 th Street, 40 th Floor
New York, NY 10019
Attention: John
Servidio
Telephone No.:
212-583-8373
Facsimile No.:
212-230-8610
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8. Representations and Warranties of
Company
The representations and warranties of
Company set forth in Section 1 of the Purchase Agreement (the
“ Purchase Agreement ”) dated as of
April 1, 2008 between Company and J.P. Morgan Securities Inc.
as representative of the Initial Purchasers party thereto are true
and correct and are hereby deemed to be repeated to Bank as if set
forth herein. Company hereby further represents and warrants to
Bank that:
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(a) |
Company has all necessary corporate power and authority to
execute, deliver and perform its obligations in respect of this
Transaction; such execution, delivery and performance have been
duly authorized by all necessary corporate action on
Company’s part; and this Confirmation has been duly and
validly executed and delivered by Company and constitutes its valid
and binding obligation, enforceable against Company in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors’ rights and remedies generally, and
subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except that rights to
indemnification and contribution hereunder may be limited by
federal or state securities laws or public policy relating
thereto. |
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(b) |
Neither the execution and delivery of this Confirmation nor the
incurrence or performance of obligations of Company hereunder will
conflict with or result in a breach of (1) the certificate of
incorporation or by-laws (or any equivalent documents) of Company,
or (2) any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or
agency, or (3) any agreement or instrument to which Company or
any of its subsidiaries is a party or by which Company or any of
its subsidiaries is bound or to which Company or any of its
subsidiaries is subject, or constitute a default under, or result
in the creation of any lien under, any such agreement or instrument
which could, in the case of clauses (2) and (3), reasonably be
expected to result in a material adverse effect on the ability of
Company and its subsidiaries to perform their obligations in
respect of this Transaction. |
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(c) |
No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required in
connection with the execution, delivery or performance by Company
of this Confirmation, except such as have been obtained or made and
such as may be required under the Securities Act of 1933, as
amended (the “ Securities Act ”) or state
securities laws or as contemplated by this Confirmation pursuant to
Section 9(k) hereof. |
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(d) |
The Shares of Company initially issuable upon exercise of the
Warrant by the net share settlement method (the “ Warrant
Shares ”) have been reserved for issuance by all required
corporate action of Company. The Warrant Shares have been duly
authorized and, when delivered against payment therefor (which may
include Net Share Settlement in lieu of cash) and otherwise as
contemplated by the terms of the Warrant following the exercise of
the Warrant in accordance with the terms and conditions of the
Warrant, will be validly issued, fully-paid and non-assessable, and
the issuance of the Warrant Shares will not be subject to any
preemptive or similar rights. |
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(e) |
Company is not required, and after giving effect to the
Transaction, will not be required to register as an
“investment company” as such term is defined in the
Investment Company Act of 1940, as amended (the “ 1940
Act ”). |
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(f) |
Company is an “eligible contract participant” (as
such term is defined in Section 1a(12) of the Commodity
Exchange Act, as amended (the “ CEA ”)) because
one or more of the following is true: |
Company is a corporation,
partnership, proprietorship, organization, trust or other entity
and:
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(A) |
Company has total assets in excess of USD
10,000,000; |
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(B) |
the obligations of Company hereunder are guaranteed, or
otherwise supported by a letter of credit or keepwell, support or
other agreement, by an entity of the type described in
Section 1a(12)(A)(i) through (iv), 1a(12)(A)(v)(I),
1a(12)(A)(vii) or 1a(12)(C) of the CEA; or |
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(C) |
Company has a net worth in excess of USD 1,000,000 and has
entered into this Agreement in connection with the conduct of
Company’s business or to manage the risk associated with an
asset or liability owned or incurred or reasonably likely to be
owned or incurred by Company in the conduct of Company’s
business. |
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(g) |
Company and each of its executive officers or directors are
not, on the date hereof, in possession of any material non-public
information with respect to Company. |
9. Other Provisions:
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(a) |
Opinions . Company shall deliver an opinion of
counsel, dated as of the Trade Date, to Bank with respect to the
matters agreed by the parties hereto. |
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(b) |
Repurchase Notices . Company shall, on any day on
which Company effects any repurchase of Shares, promptly give Bank
a written notice of such repurchase (a “ Repurchase
Notice ”) on such
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