Common use of Conditions for Effectiveness Clause in Contracts

Conditions for Effectiveness. The effectiveness of each Supplemental Confirmation and the related Transaction on the Effective Date for such Transaction shall be subject to (i) the condition that the representations and warranties of Counterparty contained in the Underwriting Agreement and any certificate delivered pursuant thereto by Counterparty or any subsidiary of Counterparty are true and correct on the Effective Date as if made as of the Effective Date, (ii) the condition that Counterparty has performed all of the obligations required to be performed by it under the Underwriting Agreement on or prior to the Effective Date, (iii) the satisfaction of all of the conditions set forth in Section 3 and Section 6 of the Underwriting Agreement, (iv) the condition that the Underwriting Agreement shall not have been terminated pursuant to Section 10 thereof and (v) the condition that neither of the following has occurred (A) in Dealer’s commercially reasonable judgment, Dealer (or its affiliate) is unable through commercially reasonable efforts to borrow and deliver for sale a number of Shares equal to the Number of Shares, or (B) in Dealer’s commercially reasonable judgment, either it would be impractical for Dealer to borrow and deliver such number of Shares equal to the Number of Shares or Dealer (or its affiliate) would incur a Stock Loan Fee of more than a rate equal to 200 basis points per annum to do so (in each such event such Supplemental Confirmation shall be effective but the Number of Shares for such Transaction shall be the number of Shares Dealer (or an affiliate thereof) is able to borrow in connection with establishing its commercially reasonable hedge position at or below such cost. Counterparty’s obligations hereunder shall be subject to the condition precedent that Dealer and each affiliate of Dealer that is an Underwriter (as such term is defined in the Underwriting Agreement) shall have performed, on or prior to the Effective Date, all of the obligations required to be performed by it prior to the Effective Date under the Underwriting Agreement.