Exhibit 99.1
Execution Version
VARIABLE SHARE FORWARD TRANSACTION PARTIAL UNWIND AND AMENDMENT AGREEMENT
dated as of November 28, 2022
BETWEEN JORGE MAS HOLDINGS I, LLC and BANK OF AMERICA, N.A.
THIS VARIABLE SHARE FORWARD TRANSACTION PARTIAL UNWIND AND AMENDMENT AGREEMENT (this “Amendment Agreement”) with respect to the Confirmation (as defined below) is made as of November 28, 2022, between Jorge Mas Holdings I, LLC (“Party B”) and Bank of America, N.A. (“Party A”).
WHEREAS, Party A and Party B entered into a confirmation for a variable share forward transaction (the “Confirmation”) dated as of November 19, 2019 in respect of an aggregate Number of Shares, collectively, equal to 2,500,000;
WHEREAS, the parties wish to amend the Confirmation for the Transaction pursuant to this Amendment Agreement to, among other things, (i) provide for a partial termination of the Transaction and (ii) increase the number of Components, extend the Valuation Dates and reset each of the Forward Floor Price and Forward Cap Price for each Component with respect to the portion of the Transaction not being terminated, each in accordance with the terms and conditions herein specified; and
WHEREAS, contemporaneously with their entry into the Confirmation, the parties hereto along with BofA Securities, Inc., as Custodian, entered into a Pledge Agreement, dated as of November 19, 2019 (the “Pledge Agreement”);
NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:
1. Defined Terms. Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Confirmation. In the event of any inconsistency between the definitions set forth in the Confirmation and this Amendment Agreement, this Amendment Agreement shall govern.
2. Partial Unwind.
(a) On November 29, 2022, Party B shall deliver an amount in cash equal to $88,485,885.51 (the “Cash Prepayment Amount”) to the Collateral Account (as defined in the Pledge Agreement) maintained by Party A. Notwithstanding anything to the contrary in the Confirmation or the Pledge Agreement, such cash amount shall not be released from the Collateral Account except as provided in this Section 2(a). Within two Currency Business Days following the Hedge Adjustment Period End Date, Party B shall pay an amount in cash to Party A (the “Cash Payment”) determined in accordance with the grid attached as Annex B hereto in consideration for the agreements set forth herein. Party B hereby authorizes Party A to effect payment of the Cash Payment from Party B to Party A by releasing cash in an amount equal to the Cash Payment from the Collateral Account (up to an amount equal to the Cash Prepayment Amount) to Party A for its account without further authorization from Party B. For the avoidance of doubt, if the Cash Payment is greater than the Cash Prepayment Amount, Party B shall pay the excess over the amount released from the Collateral Account to Party A within two Currency Business Days following the Hedge Adjustment Period End Date. If the Cash Payment is less than the Cash Prepayment Amount, Party A shall, so long as no Default Event has occurred and is then continuing, release the difference to Party B from the Collateral Account within two Currency Business Days following the Hedge Adjustment Period End Date.
(b) Effective immediately following the Hedge Adjustment Period End Date, subject to the satisfaction of Party B’s obligations pursuant to Section 2(a) above, the aggregate Number of Shares under the Transaction shall be reduced by 1,250,000 (the “Share Reduction Number”) and, within two Currency Business Days following the date Party A receives the Cash Payment (as described in Section 2(a) above) in full, an amount of Shares equal to the Share Reduction Number shall be subject to release from the Pledge Agreement in accordance with the terms and conditions of such Pledge Agreement (it being agreed that this Amendment Agreement constitutes written notice of Party B’s request for such release). Notwithstanding anything to the contrary in this Section 2(b), no Shares shall be subject to release from the Pledge Agreement pursuant to this Section until Party A receives the Cash Payment in full.
3. Amendments to Confirmation. Each party hereto agrees that, subject to satisfaction of Party B’s obligations pursuant to Section 2(a) above, the Confirmation is hereby amended by:
(a) inserting the following paragraph below the second paragraph in the preamble: