Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Notes, in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making distributions to the Equityholder and redeeming the Class A Notes in whole or in part. (b) If the proceeds of the Subordinated Notes are being used to redeem any of the Notes, on the date of any Subordinated Note Issuance, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes. (c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Notes to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issued: (i) the aggregate principal amount of any such Subordinated Notes that may be issued; (ii) the proposed date of such Subordinated Note Issuance; (iii) the Final Legal Maturity Date of any such Subordinated Notes; (iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof; (v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined; (vi) the denomination or denominations in which such Subordinated Notes shall be issuable; (vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(c); (viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor; (ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Notes; (x) the use of proceeds of such Subordinated Note Issuance; and (xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture). (d) If any of the terms of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes. (e) Any Subordinated Notes shall be subordinated to the Class A Notes pursuant to the priority of payment provisions under this Indenture, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Notes have been paid in full. In addition, while any Class A Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from Refinancing Notes in respect of such Subordinated Notes or capital contributions from the Equityholder.
Appears in 3 contracts
Sources: Indenture (Alexza Pharmaceuticals Inc.), Indenture (Alexza Pharmaceuticals Inc.), Indenture (Alexza Pharmaceuticals Inc.)
Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Notes, in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture; provided, however, that in no event may any Subordinated Notes or an interest therein be offered, sold or transferred to Zealand, the Seller, the Issuer or any of their respective Affiliates. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making distributions to the Equityholder and redeeming the Class A Notes in whole or in part.
(b) If the proceeds of the Subordinated Notes are being used to redeem any of the Notes, on On the date of any Subordinated Note IssuanceIssuance for the purpose of redemption of the Class A Notes, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, sufficient to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any the deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes. Subject to Section 3.9(b), once a notice of Redemption in respect of any Subordinated Note Issuance is published in accordance with Section 3.9(a), each class of Notes to which such notice applies shall become due and payable on the Redemption Date stated in such notice at their Redemption Price.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Notes to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issued:
(i) the aggregate principal amount of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
(iii) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereofthereof (it being understood that no such Subordinated Notes shall have the benefit of the Interest Reserve Account or the Milestone Payments Reserve Account);
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) subject to Section 2.16(e), the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any of the terms of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes.
(e) Any Subordinated Notes shall be subordinated in all respects to the Class A Notes pursuant to the priority of payment provisions under under, and the other provisions of, this Indenture, and no payments of principal, interest or Premium, if any, or other amounts, may be made on on, or with respect to, such Subordinated Notes from the Available Collections Amount or from any of the Transaction Accounts until the Class A Notes have been paid in full. In addition, while any Class A Notes are Outstanding, Subordinated Notes may only not be redeemed by the Issuer with proceeds from Refinancing Notes in respect of such Subordinated Notes whole or capital contributions from the Equityholderin part.
Appears in 2 contracts
Sources: Indenture (Zealand Pharma a/S), Indenture (Zealand Pharma a/S)
Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Original Notes (or any Refinancing Notes in respect of the Original Notes), in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making distributions to the Equityholder and redeeming the Class A Original Notes (or any Refinancing Notes in respect of the Original Notes) in whole or in part.
(b) If the proceeds of the Subordinated Notes are being used to redeem any of the Notes, on the date of any Subordinated Note Issuance, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, sufficient to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any the deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes. Subject to Section 3.9(b), once a notice of Redemption in respect of any Subordinated Note Issuance is published in accordance with Section 3.9(a), each class of Notes to which such notice applies shall become due and payable on the Redemption Date stated in such notice at their Redemption Price.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Original Notes (and any Refinancing Notes in respect of the Original Notes) to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issued:
(i) the aggregate principal amount of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
(iii) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will shall be subject to redemption pursuant to Section 3.8(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners Beneficial Holders of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any of the terms of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes.
(e) Any Subordinated Notes shall be subordinated to the Class A Original Notes (and any Refinancing Notes in respect of the Original Notes) pursuant to the priority Priority of payment provisions under this IndenturePayments, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Original Notes (and any Refinancing Notes in respect of the Original Notes) have been paid in full. In addition, while any Class A Original Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from (or any Refinancing Notes in respect of such the Original Notes) are Outstanding, the Issuer may redeem the Subordinated Notes or capital contributions from solely with monies that are received by the EquityholderIssuer pursuant to Section 3.7(b)(ii).
Appears in 2 contracts
Sources: Indenture (Theravance Biopharma, Inc.), Indenture (Theravance Biopharma, Inc.)
Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e), the Issuer may issue one or more series of The Subordinated Notes pursuant to this Indenture or the guarantees thereof (each, a “Subordinated Note Issuance”) for or any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Notes, in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making distributions to the Equityholder and redeeming the Class A Notes in whole or in part.
(b) If the proceeds refinancing Indebtedness of the Subordinated Notes are being used incurred pursuant to redeem Section 11.12(b)) shall cease, for any reason, to be validly subordinated to the Payment Obligations as provided in the Subordinated Note Indenture (or the agreement governing such refinancing Indebtedness) or the trustee in respect of the Notes, on Subordinated Notes (or the date agreement governing such refinancing Indebtedness) or the holders of any Subordinated Note Issuance, the Issuer shall issue and sell an at least 25% in aggregate principal amount of the Subordinated Notes (or such refinancing Indebtedness) shall so assert; then, and in any such event, (x) if such event is an amount Event of Default specified in clause (i), (ii) or (iii) of paragraph (j) of this Section 12 with respect to any Loan Party, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including, without limitation, all amounts of L/C Obligations, whether or not less than the amount sufficient, together with any amounts available in the Capital Account, to pay in full the applicable Redemption Price beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder), the Notes being redeemed thereby plus and the Transaction Expenses relating thereto. The proceeds of each sale of Drafts shall immediately become due and payable, and (y) if such Subordinated Notes shall be used to make any deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to event is any other series or classes (or sub-classes) Event of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Notes to the extent provided in this Indenture. Prior to the issuance of any such Subordinated NotesDefault, any or all of the followingfollowing actions may be taken: (i) with the consent of the Required Multi-Currency Lenders, the Multi-Currency Administrative Agent may, or upon the request of the Required Multi-Currency Lenders, the Multi-Currency Administrative Agent shall, by notice to the Company, declare the Aggregate Multi-Currency Commitment to be terminated forthwith, whereupon the Aggregate Multi-Currency Commitment shall immediately terminate; and/or (ii) with the consent of the Required Multi-Currency Lenders, the Multi-Currency Administrative Agent may, or upon the request of the Required Multi-Currency Lenders, the Multi-Currency Administrative Agent shall, by notice to the Company (on its own behalf and as applicableagent for the Borrowing Subsidiaries), declare all or any part of the Revolving Credit Loans, Swing Line Loans, Local Loans and Acceptances (with accrued interest thereon) and any other amounts owing under this Agreement to the Multi-Currency Lenders (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder), the Revolving Credit Notes and the Drafts to be due and payable forthwith, whereupon the same shall immediately become due and payable; and/or (iii) with the consent of the Required Term Loan Lenders, the Term Loan Administrative Agent may, or upon the request of the Required Term Loan Lenders, the Term Loan Administrative Agent shall, by notice to the Company (on its own behalf and as agent for the Borrowing Subsidiaries), declare all or any part of the Term Loans (with accrued interest thereon) and any other amounts owing under this Agreement to the Term Loan Lenders and the Term Loan Notes to be due and payable forthwith, whereupon the same shall immediately become due and payable. In addition to the remedies set forth above, the Administrative Agents may direct the Collateral Agent to exercise any remedies provided for by the Security Documents in accordance with the terms thereof or any other remedies provided by applicable law. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form time of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issued:
(i) the aggregate principal amount of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
(iii) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any of the terms of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes.
(e) Any Subordinated Notes shall be subordinated to the Class A Notes an acceleration pursuant to the priority preceding paragraph, the Company shall at such time deposit as collateral security for such Letters of payment provisions under this Indenture, and no payments Credit in a Cash Collateral Account an amount of principal, interest or Premium, if any, may cash in Dollars equal to the Deposit Requirement in effect at such time. Amounts held in such Cash Collateral Account shall be made on such Subordinated Notes from the Available Collections Amount until the Class A Notes have been paid in full. In addition, while any Class A Notes are Outstanding, Subordinated Notes may only be redeemed applied by the Issuer Multi-Currency Administrative Agent (in such order as it shall elect) to the payment of the Payment Obligations on account of the Letters of Credit which are then or thereafter due and payable and to cause any then-outstanding Undrawn L/C Obligations to be Fully Secured. Following the payment of all such Payment Obligations and the termination of all Letters of Credit, any balance remaining in such Cash Collateral Account shall be applied in accordance with proceeds from Refinancing Notes the Intercreditor Agreement. Except as expressly provided above in respect this Article XII, presentment, demand, protest and all other notices of such Subordinated Notes or capital contributions from the Equityholderany kind are hereby expressly waived.
Appears in 1 contract
Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Original Notes (or any Refinancing Notes in respect of the Original Notes), in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making distributions to the Equityholder and redeeming the Class A Original Notes (or any Refinancing Notes in respect of the Original Notes) in whole or in part.
(b) If the proceeds of the Subordinated Notes are being used to redeem any of the Notes, on the date of any Subordinated Note Issuance, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, sufficient to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any the deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes. Subject to Section 3.9(b), once a notice of Redemption in respect of any Subordinated Note Issuance is published in accordance with Section 3.9(a), each class of Notes to which such notice applies shall become due and payable on the Redemption Date stated in such notice at their Redemption Price.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Original Notes (and any Refinancing Notes in respect of the Original Notes) to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issued:
(i) the aggregate principal amount of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
(iii) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will shall be subject to redemption pursuant to Section 3.8(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners Beneficial Holders of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any of the terms of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes.
(e) Any Subordinated Notes shall be subordinated to the Class A Original Notes (and any Refinancing Notes in respect of the Original Notes) pursuant to the priority Priority of payment provisions under this IndenturePayments, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Original Notes (and any Refinancing Notes in respect of the Original Notes) have been paid in full. In addition, while any Class A Original Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from (or any Refinancing Notes in respect of such the Original Notes) are Outstanding, the Issuer may redeem the Subordinated Notes or capital contributions from the Equityholdersolely with monies that are not Retained Royalty Payments.
Appears in 1 contract
Sources: Indenture (Theravance Inc)
Subordinated Notes. (a) Subject to Section 2.16(b)At any time, Section 2.16(c)directly or indirectly, Section 2.16(d) and Section 2.16(e)pay, prepay, repurchase, redeem, retire or otherwise acquire, or make any payment on account of any principal of, interest on or premium payable in connection with the Issuer may issue one repayment or more series redemption of the Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purposeNotes, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Notes, in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making distributions to the Equityholder and redeeming the Class A Notes in whole or in part.
(b) If the proceeds of the Subordinated Notes are being used to redeem any of the Notes, on the date of any Subordinated Note Issuance, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Notes to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Noteswithout limitation, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form defeasance of such Subordinated Notes, other than (a) so long as no Default or Event of Default shall have occurred and be continuing, regularly scheduled payments of principal and interest to the case may be, with respect to such Subordinated Notes to be issued:
(i) extent payment is permitted by the aggregate principal amount terms of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
Documentation as in effect on the Original Closing Date and (iiib) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority redemptions of such Subordinated Notes relative to any other series on the terms set forth in the Subordinated Note Documentation as in effect on the Original Closing Date and so long as (i) no Default or classes Event of Default shall have occurred and be continuing or would occur as a result of such redemption except as otherwise permitted in Section 2.11(d) and (or sub-classesii) such redemptions shall be made solely out of Notes;
(x) the use of proceeds of Extraordinary Receipts or the proceeds of a refinancing of the Subordinated Notes not to exceed the aggregate outstanding principal balance of the Subordinated Notes as of the date of any such redemption and shall occur only after, or concurrently with, any mandatory prepayments required pursuant to Section 2.11(d) hereof have been made, and provided, further, that such refinancing shall not be materially more onerous to the Borrower and shall contain subordination terms substantially similar to those contained in the Subordinated Note Issuance; and
(xi) any Documentation and such other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating terms which are acceptable to such Subordinated Notes (which terms the Administrative Agent in all respects. The foregoing shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any be deemed a waiver of the terms requirement that the proceeds of Mandatory Extraordinary Receipts and the proceeds of any issue Extra Subordinated Indebtedness be applied as a mandatory prepayment of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated NotesTerm Loan B under Section 2.11(d) hereof.
(e) Any Subordinated Notes shall be subordinated to the Class A Notes pursuant to the priority of payment provisions under this Indenture, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Notes have been paid in full. In addition, while any Class A Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from Refinancing Notes in respect of such Subordinated Notes or capital contributions from the Equityholder.
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Sources: Revolving Credit, Equipment Loan, Term Loan and Security Agreement (McMS Inc /De/)
Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Notes, in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making distributions to the Equityholder and redeeming the Class A Notes in whole or in part.
(b) If the proceeds of the Subordinated Notes are being used to redeem any of the Notes, on On the date of any Subordinated Note Issuance, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, sufficient to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any the deposit required by Section 3.93.7, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes. Subject to Section 3.7(b), once a notice of Redemption in respect of any Subordinated Note Issuance is published in accordance with Section 3.7(a), each class of Notes to which such notice applies shall become due and payable on the Redemption Date stated in such notice at their Redemption Price.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Notes to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issued:
(i) the aggregate principal amount of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
(iii) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(c3.6(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any of the terms of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes.
(e) Any Subordinated Notes shall be subordinated to the Class A Notes pursuant to the priority of payment provisions under this Indenture, and no cash payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Notes have been paid in full. In addition, while any it being understood that (i) payments of cash interest by the Issuer on such Subordinated Notes from available funds other than the Synthetic Royalty Amount may be made so long as the Class A Notes are Outstanding, current in respect of interest and principal and (ii) Redemption of the Subordinated Notes may only be redeemed by the Issuer with proceeds from Refinancing Notes in respect of such Subordinated Notes or capital contributions otherwise from funds not in the EquityholderCollection Account may occur so long as the Class A Notes are current in respect of interest and principal.
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Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Notes, in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making distributions With respect to the Equityholder and redeeming the Class A Notes in whole unsecured Indebtedness of Borrower evidenced by or in part.
(b) If the proceeds of arising under the Subordinated Notes are being used to redeem any of the Notes, as in effect on the date of any Subordinated Note Issuance, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Notes to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issuedhereof:
(ia) the aggregate principal amount of any such Indebtedness shall not exceed $100,000,000, less the aggregate amount of all repayments, repurchases or redemptions, whether optional or mandatory, in respect thereof, plus interest thereon at the rate provided for in the Subordinated Notes that may be issuedas in effect on the date hereof;
(b) Borrower and any Guarantor shall not, directly or indirectly, make any payments in respect of such Indebtedness; except that, (i) if all Subordinated Note Interest Conditions are satisfied at the time of any proposed payment of interest in respect of the Subordinated Notes, as determined by Agent in its Permitted Discretion, Borrower may make regularly scheduled payments or mandatory payments of interest (on an unmatured and non-accelerated basis) in respect of the Subordinated Notes in accordance with the terms of the Subordinated Notes and/or Subordinated Indenture, including, without limitation, Section 10 of the Subordinated Indenture, as in effect on the date hereof, and (ii) the proposed date of such if all Subordinated Note IssuanceRepurchase Conditions are satisfied at the time of any proposed Subordinated Note Repurchase as determined by Agent in its sole discretion, Borrower may make Subordinated Note Repurchases;
(iiic) the Final Legal Maturity Date Obligations of any Borrower shall at all times constitute “Designated Senior Indebtedness” (as such quoted term is defined in the Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(cIndenture);
(viiid) whether any such Subordinated Notes are to be issuable initially in temporary Borrower shall not, directly or permanent global form andindirectly, if so(i) amend, whether beneficial owners of interests modify, alter or change in any such permanent global material respect any terms of Indebtedness arising or in connection with the Subordinated Note may exchange such interests for Notes, the Subordinated Notes of like tenor and Indenture or any related agreements, documents or instruments, except that Borrower may, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof or defer the timing of any authorized form and denomination and the circumstances under which payments in respect thereof, or to forgive or cancel any portion of such exchanges may occur, if Indebtedness other than pursuant to payments thereof, or to reduce the interest rate or any fees in the manner provided in Section 2.7connection therewith, and the circumstances or (ii) except as expressly permitted under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any of the terms of this Agreement, redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, sums for such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes.
(e) Any Subordinated Notes shall be subordinated to the Class A Notes pursuant to the priority of payment provisions under this Indenture, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Notes have been paid in full. In addition, while any Class A Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from Refinancing Notes in respect of such Subordinated Notes or capital contributions from the Equityholder.purpose; and
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Subordinated Notes. Borrower or Administrative Agent receives (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Notes, in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds notice from the issuance of any such Subordinated Notes, including making distributions to the Equityholder and redeeming the Class A Notes in whole or in part.
(b) If the proceeds required holders of the Subordinated Notes are being used of an intent to redeem accelerate the Subordinated Notes, (b) notice from any holder of the Subordinated Notes of an intent to accelerate such holder's Subordinated Notes, on or (c) notice from any holder of the date of any Subordinated Note Issuance, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in of acceptance of an amount not less than the amount sufficient, together with any amounts available in the Capital Account, offer from Borrower to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of repurchase such Subordinated Notes.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Notes to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issued:
(i) upon the aggregate occurrence of any Event of Default described in subsection 8.6 or 8.7, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Subordinated Notes that may Letter of Credit shall have presented, or shall be issued;
entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Borrower, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the proposed date of such Subordinated Note Issuance;
(iii) occurrence and during the Final Legal Maturity Date continuation of any such Subordinated Notes;
other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Borrower, declare all or any portion of the amounts described in clauses (iva) whether any such Subordinated Notes are through (c) above to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7be, and the circumstances under which same shall forthwith become, immediately due and payable, and the place obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Lenders under subsection 2.3(c) or places where the obligations of Lenders to purchase participations in any unpaid Swingline Loans as provided in subsection 2.4(b)(ii). Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided. 103 Notwithstanding anything contained in the second preceding paragraph, if at any time within 60 days after an acceleration of the Loans pursuant to clause (ii) of such exchanges paragraph Borrower shall pay all arrears of interest and all payments on account of principal which shall have become due otherwise than as a result of such acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and Potential Events of Default (other than non-payment of the principal of and accrued interest on the Loans, in each case which is due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to Borrower, may at their option rescind and annul such acceleration and its consequences; but such action shall not affect any subsequent Event of Default or Potential Event of Default or impair any right consequent thereon. The provisions of this paragraph are intended merely to bind Lenders to a decision which may be made at the election of Requisite Lenders and are not intended, directly or indirectly, to benefit Borrower, and such provisions shall not at any time be construed so as to grant Borrower the identity of right to require Lenders to rescind or annul any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative acceleration hereunder or to any other series preclude Administrative Agent or classes (or sub-classes) of Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If Lenders from exercising any of the terms rights or remedies available to them under any of any issue of Subordinated Notes the Loan Documents, even if the conditions set forth in this paragraph are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notesmet.
(e) Any Subordinated Notes shall be subordinated to the Class A Notes pursuant to the priority of payment provisions under this Indenture, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Notes have been paid in full. In addition, while any Class A Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from Refinancing Notes in respect of such Subordinated Notes or capital contributions from the Equityholder.
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Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e2.16(d), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Notes, in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making dividends or distributions to the Equityholder Equityholders and redeeming the Class A Notes in whole or in part. If the proceeds of any Subordinated Notes are being used to redeem the Class A Notes, in whole or in part, such Subordinated Notes shall be issued on the Redemption Date on which the Optional Redemption of the Class A Notes being refinanced is to occur as provided in Section 3.10.
(b) If the proceeds of the any Subordinated Notes are being used to redeem any of the Class A Notes, on such redemption shall be effected as an Optional Redemption pursuant to Section 3.9(b). On the date of any Subordinated Note Issuancesuch Optional Redemption, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, sufficient to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any the deposit required by Section 3.93.10, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes. Subject to Section 3.10(b), once a notice of Redemption in respect of any Subordinated Note Issuance is published in accordance with Section 3.10(a), each class of Notes to which such notice applies shall become due and payable on the Redemption Date stated in such notice at their Redemption Price.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)2.1) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Notes to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to the such Subordinated Notes to be issued:
(i) the aggregate principal amount of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
(iii) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(c3.9(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Subordinated Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any of the terms of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes.
(e) Any Subordinated Notes shall be subordinated to the Class A Notes pursuant to the priority of payment provisions under this Indenture, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Notes have been paid in full. In addition, while any Class A Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from Refinancing Notes in respect of such Subordinated Notes or capital contributions from the EquityholderEquityholders.
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Subordinated Notes. This Condition 6.3 is applicable in relation to Notes specified in the Final Terms as being Subordinated Notes (Subordinated Notes).
(a) Subject The Subordinated Notes constitute direct, unsecured and subordinated obligations of the Issuer and rank at all times (i) subject to Section 2.16(b)mandatory provisions of law, Section 2.16(c)pari passu without any preference among themselves and pari passu with all other present and future subordinated and unsecured obligations of the Issuer which rank or are expressed to rank pari passu with the Subordinated Notes, Section 2.16(d(ii) junior to present and future obligations of the Issuer in respect of Unsubordinated Notes and Unsubordinated MREL Notes (and all other present and future obligations of the Issuer which rank or are expressed to rank pari passu with Unsubordinated Notes and Unsubordinated MREL Notes) and Section 2.16(e), Senior Non-Preferred Notes (and all other present and future obligations of the Issuer may issue one which rank or more series are expressed to rank pari passu with Senior Non-Preferred Notes) and any other obligations of the Issuer (including subordinated obligations, if relevant) which rank or are expressed to rank senior to the Subordinated Notes, including deposits of the Bank and (iii) in priority to present and future subordinated and unsecured obligations of the Issuer (A) which rank or are expressed to rank junior to the Subordinated Notes pursuant to this Indenture and (each, a “Subordinated Note Issuance”B) for any purpose, including, at in respect of the option share capital of the Issuer, for . For the purpose avoidance of funding a redemption of the Class A Notesdoubt, in whole the event the Subordinated Notes of any Series do not qualify or cease to qualify, in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally their entirety, as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified own funds in the form of Tier 2 Capital, such Subordinated Notes shall rank subordinated and junior to unsubordinated unsecured creditors (including depositors and holders of Unsubordinated Notes and Unsubordinated MREL Notes and Senior Non-Preferred Notes) of the Bank, pari passu among themselves and with the Bank’s obligations in respect of any other subordinated instruments which have ceased to qualify, in their entirety, as own funds items and with all other present and future subordinated obligations of the case may be. There Bank which do not rank or are no limitations on the use not expressed by their terms and/or by mandatory and/or overriding provisions of proceeds from the issuance of any such Subordinated Notes, including making distributions law to rank junior or senior to the Equityholder relevant Subordinated Notes (which have so ceased to qualify, in their entirety, as own funds in the form of Tier 2 Capital) and redeeming senior to own fund items. The claims of the Class A Holders will be subordinated to the claims of Senior Creditors, in that, subject as set out in (b) below, payments of principal and interest in respect of the Subordinated Notes (whether in whole the winding up, dissolution, liquidation and/or bankruptcy of the Issuer or otherwise) will be conditional upon the Issuer being solvent at the time of payment by the Issuer and in partthat no principal or interest shall be payable in respect of the Subordinated Notes (whether in the winding up, dissolution, liquidation and/or bankruptcy of the Issuer or otherwise) except to the extent that the Issuer could make such payment and still be solvent immediately thereafter. For this purpose, the Issuer shall be considered to be solvent if it can pay principal and interest in respect of the Subordinated Notes issued by the Issuer and still be able to pay its outstanding debts to the Senior Creditors which are due and payable.
(b) If Notwithstanding (a) above, Holders will have a claim against the proceeds Issuer in the case of winding-up, dissolution, liquidation and/or bankruptcy of the Subordinated Notes are being used to redeem any of Issuer, but the Notes, on the date of any Subordinated Note Issuance, Holders will only be paid by the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, to pay after all Senior Creditors have been paid in full and the applicable Redemption Price of Holders irrevocably waive their right to be treated equally with the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of Senior Creditors in such Subordinated Notes shall be used to make any deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notescircumstances.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) Holder of Subordinated Notes as specified in such Resolution unconditionally and set forth in an indenture supplemental hereto andirrevocably waives any right of set-off, netting, counterclaim, abatement or other similar remedy which it might otherwise have, under the laws of any jurisdiction, in any event, shall be subordinate to respect of the Class A Notes to Subordinated Notes. To the extent provided in this Indenture. Prior to the issuance that any set-off takes place, whether by operation of law or otherwise, between: (y) any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined amount owed by the Issuer to a Noteholder or Couponholder arising under or in connection with the Subordinated Notes issued by the Issuer or the Coupons relating thereto and set forth in (z) any amount owed to the Issuer by such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated NotesNoteholder or, as the case may be, with respect Couponholder, such Noteholder or, as the case may be, Couponholder will immediately transfer such amount which is set-off to such Subordinated Notes to be issued:
(i) the aggregate principal amount Issuer or, in the event of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
(iii) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if soits winding up or dissolution or liquidation and/or bankruptcy, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest liquidator, administrator or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any relevant insolvency official of the terms Issuer. For the avoidance of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutionsdoubt, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notesthere is no negative pledge provision in these Conditions.
(e) Any Subordinated Notes shall be subordinated to the Class A Notes pursuant to the priority of payment provisions under this Indenture, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Notes have been paid in full. In addition, while any Class A Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from Refinancing Notes in respect of such Subordinated Notes or capital contributions from the Equityholder.
Appears in 1 contract
Sources: Agency Agreement
Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e2.16(d), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Notes, in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making dividends or distributions to the Equityholder Equityholders and redeeming the Class A Notes in whole or in part. If the proceeds of any Subordinated Notes are being used to redeem the Class A Notes, in whole or in part, such Subordinated Notes shall be issued on the Redemption Date on which the Optional Redemption of the Class A Notes being refinanced is to occur as provided in Section 3.10.
(b) If the proceeds of the any Subordinated Notes are being used to redeem any of the Class A Notes, on such redemption shall be effected as an Optional Redemption pursuant to Section 3.9(b). On the date of any Subordinated Note Issuancesuch Optional Redemption, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, sufficient to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any the deposit required by Section 3.93.10, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes. Subject to Section 3.10(b), once a notice of Redemption in respect of any Subordinated Note Issuance is published in accordance with Section 3.10(a), each class of Notes to which such notice applies shall become due and payable on the Redemption Date stated in such notice at their Redemption Price.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)2.1) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classes) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Notes to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issued:
(i) the aggregate principal amount of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
(iii) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will be subject to redemption pursuant to Section 3.8(c3.9(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Subordinated Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any of the terms of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes.
(e) Any Subordinated Notes shall be subordinated to the Class A Notes pursuant to the priority of payment provisions under this Indenture, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Notes have been paid in full. In addition, while any Class A Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from Refinancing Notes in respect of such Subordinated Notes or capital contributions from the EquityholderEquityholders.
Appears in 1 contract
Sources: Indenture (PDL Biopharma, Inc.)
Subordinated Notes. (a) Subject to Section 2.16(b), Section 2.16(c), Section 2.16(d) and Section 2.16(e), the Issuer may issue one or more series of Subordinated Notes pursuant to this Indenture (each, a “Subordinated Note Issuance”) for any purpose, including, at the option of the Issuer, for the purpose of funding a redemption of the Class A Original Notes (or any Refinancing Notes in respect of the Original Notes), in whole or in part. Each Subordinated Note Issuance shall be authorized pursuant to one or more Resolutions. Each Subordinated Note shall be designated generally as a Note for all purposes under this Indenture. Each Subordinated Note shall have such further designations added or incorporated in such title as specified in the related Resolution and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes, as the case may be. There are no limitations on the use of proceeds from the issuance of any such Subordinated Notes, including making distributions to the Equityholder and redeeming the Class A Original Notes (or any Refinancing Notes in respect of the Original Notes) in whole or in part.
(b) If the proceeds of the Subordinated Notes are being used to redeem any of the Notes, on the date of any Subordinated Note Issuance, the Issuer shall issue and sell an aggregate principal amount of Subordinated Notes in an amount not less than the amount sufficient, together with any amounts available in the Capital Account, sufficient to pay in full the applicable Redemption Price of the Notes being redeemed thereby plus the Transaction Expenses relating thereto. The proceeds of each sale of such Subordinated Notes shall be used to make any the deposit required by Section 3.9, to the extent applicable, to pay such Transaction Expenses and/or for such other purposes, if any, as shall be specified in the Resolution authorizing the issuance of such Subordinated Notes. Subject to Section 3.9(b), once a notice of Redemption in respect of any Subordinated Note Issuance is published in accordance with Section 3.9(a), each class of Notes to which such notice applies shall become due and payable on the Redemption Date stated in such notice at their Redemption Price.
(c) Each Subordinated Note shall contain such terms as may be established in or pursuant to the related Resolution (subject to Section 2.1(e)) and set forth in any indenture supplemental hereto providing for the issuance of such Notes or specified in the form of such Notes to the extent permitted herein, shall rank in priority relative to any other series or classes (or sub-classessubclasses) of Subordinated Notes as specified in such Resolution and set forth in an indenture supplemental hereto and, in any event, shall be subordinate to the Class A Original Notes (and any Refinancing Notes in respect of the Original Notes) to the extent provided in this Indenture. Prior to the issuance of any such Subordinated Notes, any or all of the following, as applicable, with respect to the related Subordinated Note Issuance shall have been determined by the Issuer and set forth in such Resolution and in any indenture supplemental hereto or specified in the form of such Subordinated Notes, as the case may be, with respect to such Subordinated Notes to be issued:
(i) the aggregate principal amount of any such Subordinated Notes that may be issued;
(ii) the proposed date of such Subordinated Note Issuance;
(iii) the Final Legal Maturity Date of any such Subordinated Notes;
(iv) whether any such Subordinated Notes are to have the benefit of any reserve account and, if so, the amount and terms thereof;
(v) the rate at which such Subordinated Notes shall bear interest or the method by which such rate shall be determined;
(vi) the denomination or denominations in which such Subordinated Notes shall be issuable;
(vii) whether such Subordinated Notes will shall be subject to redemption pursuant to Section 3.8(c);
(viii) whether any such Subordinated Notes are to be issuable initially in temporary or permanent global form and, if so, whether beneficial owners Beneficial Holders of interests in any such permanent global Subordinated Note may exchange such interests for Subordinated Notes of like tenor and of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.7, and the circumstances under which and the place or places where any such exchanges may be made and the identity of any initial depositary therefor;
(ix) the ranking in priority of such Subordinated Notes relative to any other series or classes (or sub-classes) of Notes;
(x) the use of proceeds of such Subordinated Note Issuance; and
(xi) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to such Subordinated Notes (which terms shall comply with Applicable Law and not violate any restrictions of this Indenture).
(d) If any of the terms of any issue of Subordinated Notes are established by action taken pursuant to one or more Resolutions, such Resolutions shall be delivered to the Trustee setting forth the terms of such Subordinated Notes.
(e) Any Subordinated Notes shall be subordinated to the Class A Original Notes (and any Refinancing Notes in respect of the Original Notes) pursuant to the priority Priority of payment provisions under this IndenturePayments, and no payments of principal, interest or Premium, if any, may be made on such Subordinated Notes from the Available Collections Amount until the Class A Original Notes (and any Refinancing Notes in respect of the Original Notes) have been paid in full. In addition, while any Class A Original Notes are Outstanding, Subordinated Notes may only be redeemed by the Issuer with proceeds from (or any Refinancing Notes in respect of such the Original Notes) are Outstanding, the Issuer may redeem the Subordinated Notes or capital contributions from the Equityholdersolely with monies that are not Retained Royalty Payments.
Appears in 1 contract
Sources: Indenture (Innoviva, Inc.)