Restricted Notes. (a) Notwithstanding the other provisions of this Agreement, the Notes issued to Aria Infotek in an aggregate principal amount of US$10,000,000 shall constitute restricted notes (the "Restricted Notes"). The Restricted Notes shall comprise US$3,454,545.45 of the Notes issued to Aria Infotek having a stated maturity date of the Fifth Repayment Date, US$3,454,545.45 of the Notes issued to Aria Infotek having a stated maturity date of the Sixth Repayment Date and US$3,090,909.10 of the Notes issued to Aria Infotek having a stated maturity date of the Seventh Repayment Date. Until the expiration of the Restriction Period, (i) Aria Infotek shall not sell, transfer, pledge, charge, hypothecate, Encumber or otherwise dispose of any Restricted Notes and (ii) Purchaser shall be entitled to set-off and deduct from any and all principal or other amounts owing or due under the Restricted Notes all or any amount 23 <PAGE> owing, due or otherwise payable by Aria Infotek to Purchaser under any Transaction Document or otherwise, as evidenced by (A) a written instrument executed by and between Purchaser end Aria Infotek; (B) in the event Aria Infotek participates in or assumes the defense of a third-party claim pursuant to Section 9.4 of this Agreement, the full amount for which the Company, any of its Subsidiaries or the Indemnified Party is or becomes liable as finally determined in any Proceeding or any compromise or settlement relating to such third-party claim or (C) a final arbitral award (such amounts which Purchaser shall be so entitled to set-off or deduct, are individually and collectively referred to herein as "Eligible Amounts"). The Restricted Notes shall be deemed satisfied, paid and forever discharged to the extent Purchaser sets-off or deducts any Eligible Amounts against such Restricted Notes. Neither the exercise nor the failure to exercise a right of set-off or deduction shall constitute an election of remedies or limit Purchaser in any manner in the enforcement of other remedies that may be available to it, whether at law or in equity. If exercised, such right of set-off shall be applied to the payment next due under the Restricted Notes after such right of set-off is asserted, and, to the extent necessary to satisfy such right of set-off, to subsequent Restricted Notes, in the chronological order in which such Restricted Notes mature and become due. (b) During the Restriction Period no payment shall he required to be made by Purchaser under the Restricted Notes and Purchaser may withhold and shall not be required to pay any and all principal and other amounts which (but for Purchaser's rights under this Agreement) would otherwise have been payable under the Restricted Notes ("Withheld Amounts"). 24 <PAGE> (c) On or before the date 10 Business Days following expiration of the Restriction Period (such 10th Business Day, the "Remaining Withheld Amount Payment Date"), to the extent that there exists any Withheld Amounts under a Restricted Note against which Purchaser has not set-off or deducted any Eligible Amounts hereunder (a "Remaining Withheld Amount), Purchaser shall pay to Aria Infotek, interest on such Remaining Withheld Amount from the stated maturity date of such Restricted Note through the earlier of (x) the date of payment of such interest; and (y) the Remaining Withheld Amount Payment Date, at the rate of 5.0% per annum, compounded annually. To the extent any such interest has not been paid on or before the Remaining Withheld Amount Payment Date (the "Unpaid Interest"), Purchaser shall pay to Aria Infotek interest on the Unpaid Interest from the Remaining Withheld Amount Payment Date through the date of payment of the Unpaid Interest at the rate of 10.5% per annum, compounded annually. (d) In the event a notice of claim to Aria Infotek results in the extension of the Restriction Period beyond the date which is two years after the Closing Date (the "Second Anniversary"), (i) Aria Infotek shall, within 60 days following the Second Anniversary, be entitled to irrevocably and unconditionally surrender for cancellation and destruction Restricted Notes outstanding on the date of such surrender, (together with all rights and entitlements thereunder or relating thereto), in an aggregate principal amount no greater than the amount (if any) by which the aggregate amount of Restricted Notes outstanding at such time, exceeds two-hundred percent (200%) of the aggregate of all amounts then being claimed by Purchaser against Aria Infotek under any and all Transaction Documents (such excess, the "Excess Claim Amount"), being Restricted Notes 25 <PAGE> having the latest stated maturities of all Restricted Notes; and (ii) Purchaser shall contemporaneously with such surrender issue one or more Promissory Notes having an aggregate principal amount equal to the Excess Claim Amount, with each such Promissory Note, having a principle amount equal to, and a stated maturity the same as, a Restricted Note (or part thereof) so surrendered. (e) If, on the date the Restriction Period expires, the aggregate principal amount of all of the Restricted Notes outstanding on such date exceeds the sum of all Eligible Amounts then owing or due or otherwise payable to Purchaser (such excess, the "Excess Security Amount"), (i) Aria Infotek shall, within 60 days of the expiration of the Restriction Period, be entitled to irrevocably and unconditionally surrender for cancellation and destruction Restricted Notes outstanding on such date, (together with all rights and entitlements thereunder or relating thereto), in an aggregate principal amount no greater than the Excess Security Amount, being Restricted Notes having the latest stated maturities of all Restricted Notes; and (ii) Purchaser shall contemporaneously with such surrender issue one or more Promissory Notes having an aggregate principal amount equal to the Excess Security Amount, with each such Promissory Note, having a principal amount equal to, and a stated maturity the same as, a Restricted Note (or part thereof) so surrendered. (f) To the extent Purchaser gives Aria Infotek notice of any set-off or deduction of any Eligible Amount under this Agreement, Aria Infotek shall within 5 Business Days thereof irrevocably and unconditionally surrender for cancellation and destruction to Purchaser, any and all Restricted Notes against which such set-off or deduction has been made, provided however to the extent any such set-off or deduction is made 26 <PAGE> against less than the full principal amount of a Restricted Note, Purchaser shall issue a replacement Restricted Note for the portion of such principal amount not so set-off with the same maturity as such Restricted Note. (g) All reasonable costs and expenses relating to any exchange of Restricted Notes for Promissory Notes as provided in this Section 3.5 shall be paid exclusively by Aria Infotek.
Appears in 1 contract
Restricted Notes. (a) Notwithstanding the other provisions of this Agreement, the Notes issued to Aria Infotek in an aggregate principal amount of US$10,000,000 shall constitute restricted notes (the "Restricted Notes"). The Restricted Notes shall comprise US$3,454,545.45 of the Notes issued to Aria Infotek having a stated maturity date of the Fifth Repayment Date, US$3,454,545.45 of the Notes issued to Aria Infotek having a stated maturity date of the Sixth Repayment Date and US$3,090,909.10 of the Notes issued to Aria Infotek having a stated maturity date of the Seventh Repayment Date. Until the expiration of the Restriction Period, (i) Aria Infotek shall not sell, transfer, pledge, charge, hypothecate, Encumber or otherwise dispose of any Restricted Notes and (ii) Purchaser shall be entitled to set-off and deduct from any and all principal or other amounts owing or due under the Restricted Notes all or any amount 23 <PAGE> owing, due or otherwise payable by Aria Infotek to Purchaser under any Transaction Document or otherwise, as evidenced by (A) a written instrument executed by and between Purchaser end Aria Infotek; (B) in the event Aria Infotek participates in or assumes the defense of a third-party claim pursuant to Section 9.4 of this Agreement, the full amount for which the Company, any of its Subsidiaries or the Indemnified Party is or becomes liable as finally determined in any Proceeding or any compromise or settlement relating to such third-party claim or (C) a final arbitral award (such amounts which Purchaser shall be so entitled to set-off or deduct, are individually and collectively referred to herein as "Eligible Amounts"). The Restricted Notes shall be deemed satisfied, paid and forever discharged to the extent Purchaser sets-off or deducts any Eligible Amounts against such Restricted Notes. Neither the exercise nor the failure to exercise a right of set-off or deduction shall constitute an election of remedies or limit Purchaser in any manner in the enforcement of other remedies that may be available to it, whether at law or in equity. If exercised, such right of set-off shall be applied to the payment next due under the Restricted Notes after such right of set-off is asserted, and, to the extent necessary to satisfy such right of set-off, to subsequent Restricted Notes, in the chronological order in which such Restricted Notes mature and become due.
(b) During the Restriction Period no payment shall he required to be made by Purchaser under the Restricted Notes and Purchaser may withhold and shall not be required to pay any and all principal and other amounts which (but for Purchaser's rights under this Agreement) would otherwise have been payable under the Restricted Notes ("Withheld Amounts"). 24 <PAGE> .
(c) On or before the date 10 Business Days following expiration of the Restriction Period (such 10th Business Day, the "Remaining Withheld Amount Payment Date"), to the extent that there exists any Withheld Amounts under a Restricted Note against which Purchaser has not set-off or deducted any Eligible Amounts hereunder (a "Remaining Withheld Amount), Purchaser shall pay to Aria Infotek, interest on such Remaining Withheld Amount from the stated maturity date of such Restricted Note through the earlier of (x) the date of payment of such interest; and (y) the Remaining Withheld Amount Payment Date, at the rate of 5.0% per annum, compounded annually. To the extent any such interest has not been paid on or before the Remaining Withheld Amount Payment Date (the "Unpaid Interest"), Purchaser shall pay to Aria Infotek interest on the Unpaid Interest from the Remaining Withheld Amount Payment Date through the date of payment of the Unpaid Interest at the rate of 10.5% per annum, compounded annually.
(d) In the event a notice of claim to Aria Infotek results in the extension of the Restriction Period beyond the date which is two years after the Closing Date (the "Second Anniversary"), (i) Aria Infotek shall, within 60 days following the Second Anniversary, be entitled to irrevocably and unconditionally surrender for cancellation and destruction Restricted Notes outstanding on the date of such surrender, (together with all rights and entitlements thereunder or relating thereto), in an aggregate principal amount no greater than the amount (if any) by which the aggregate amount of Restricted Notes outstanding at such time, exceeds two-hundred percent (200%) of the aggregate of all amounts then being claimed by Purchaser against Aria Infotek under any and all Transaction Documents (such excess, the "Excess Claim Amount"), being Restricted Notes 25 <PAGE> having the latest stated maturities of all Restricted Notes; and (ii) Purchaser shall contemporaneously with such surrender issue one or more Promissory Notes having an aggregate principal amount equal to the Excess Claim Amount, with each such Promissory Note, having a principle amount equal to, and a stated maturity the same as, a Restricted Note (or part thereof) so surrendered.
(e) If, on the date the Restriction Period expires, the aggregate principal amount of all of the Restricted Notes outstanding on such date exceeds the sum of all Eligible Amounts then owing or due or otherwise payable to Purchaser (such excess, the "Excess Security Amount"), (i) Aria Infotek shall, within 60 days of the expiration of the Restriction Period, be entitled to irrevocably and unconditionally surrender for cancellation and destruction Restricted Notes outstanding on such date, (together with all rights and entitlements thereunder or relating thereto), in an aggregate principal amount no greater than the Excess Security Amount, being Restricted Notes having the latest stated maturities of all Restricted Notes; and (ii) Purchaser shall contemporaneously with such surrender issue one or more Promissory Notes having an aggregate principal amount equal to the Excess Security Amount, with each such Promissory Note, having a principal amount equal to, and a stated maturity the same as, a Restricted Note (or part thereof) so surrendered.
(f) To the extent Purchaser gives Aria Infotek notice of any set-off or deduction of any Eligible Amount under this Agreement, Aria Infotek shall within 5 Business Days thereof irrevocably and unconditionally surrender for cancellation and destruction to Purchaser, any and all Restricted Notes against which such set-off or deduction has been made, provided however to the extent any such set-off or deduction is made 26 <PAGE> against less than the full principal amount of a Restricted Note, Purchaser shall issue a replacement Restricted Note for the portion of such principal amount not so set-off with the same maturity as such Restricted Note.
(g) All reasonable costs and expenses relating to any exchange of Restricted Notes for Promissory Notes as provided in this Section 3.5 shall be paid exclusively by Aria Infotek.
Appears in 1 contract
Restricted Notes. (a) Notwithstanding the other provisions of this Agreement, the Notes issued to Aria Infotek in an aggregate principal amount of US$10,000,000 shall constitute restricted notes (the "Restricted Notes"). The Restricted Notes shall comprise US$3,454,545.45 of the Notes issued to Aria Infotek having a stated maturity date of the Fifth Repayment Date, US$3,454,545.45 of the Notes issued to Aria Infotek having a stated maturity date of the Sixth Repayment Date and US$3,090,909.10 of the Notes issued to Aria Infotek having a stated maturity date of the Seventh Repayment Date. Until the expiration of the Restriction Period, (i) Aria Infotek shall not sell, transfer, pledge, charge, hypothecate, Encumber or otherwise dispose of any Restricted Notes and Every Note (ii) Purchaser shall be entitled to set-off and deduct from any and all principal securities issued in exchange therefor or other amounts owing substitution thereof, except any Ordinary Shares issued upon exchange thereof, to which the provisions of Section 3.06(b)(ii) below shall apply) that bears, or due that is required under this Section 3.06 to bear, the Restricted Notes all or any amount 23 <PAGE> owing, due or otherwise payable by Aria Infotek to Purchaser under any Transaction Document or otherwise, as evidenced by (A) a written instrument executed by and between Purchaser end Aria Infotek; (B) in the event Aria Infotek participates in or assumes the defense of a third-party claim pursuant to Section 9.4 of this Agreement, the full amount for which the Company, any of its Subsidiaries or the Indemnified Party is or becomes liable as finally determined in any Proceeding or any compromise or settlement relating to such third-party claim or (C) a final arbitral award (such amounts which Purchaser shall be so entitled to set-off or deduct, are individually and collectively referred to herein as "Eligible Amounts"). The Restricted Notes shall Legend will be deemed satisfied, paid and forever discharged to be a “Restricted Note.” Each Restricted Note will be subject to the extent Purchaser sets-off or deducts any Eligible Amounts against such Restricted Notes. Neither the exercise nor the failure to exercise a right of set-off or deduction shall constitute an election of remedies or limit Purchaser restrictions on transfer set forth in any manner this Indenture (including in the enforcement of other remedies that may be available to it, whether at law or in equity. If exercised, such right of set-off shall be applied to the payment next due under the Restricted Notes after Legend) and will bear a restricted CUSIP number for the Notes unless such right of set-off is asserted, and, to the extent necessary to satisfy such right of set-off, to subsequent Restricted Notes, in the chronological order in which such Restricted Notes mature and become due.
(b) During the Restriction Period no payment shall he required to be made restrictions on transfer are eliminated or otherwise waived by Purchaser under the Restricted Notes and Purchaser may withhold and shall not be required to pay any and all principal and other amounts which (but for Purchaser's rights under this Agreement) would otherwise have been payable under the Restricted Notes ("Withheld Amounts"). 24 <PAGE> (c) On or before the date 10 Business Days following expiration written consent of the Restriction Period (such 10th Business Day, the "Remaining Withheld Amount Payment Date"), to the extent that there exists any Withheld Amounts under a Restricted Note against which Purchaser has not set-off or deducted any Eligible Amounts hereunder (a "Remaining Withheld Amount), Purchaser shall pay to Aria Infotek, interest on such Remaining Withheld Amount from the stated maturity date of such Restricted Note through the earlier of (x) the date of payment of such interest; and (y) the Remaining Withheld Amount Payment Date, at the rate of 5.0% per annum, compounded annually. To the extent any such interest has not been paid on or before the Remaining Withheld Amount Payment Date (the "Unpaid Interest"), Purchaser shall pay to Aria Infotek interest on the Unpaid Interest from the Remaining Withheld Amount Payment Date through the date of payment of the Unpaid Interest at the rate of 10.5% per annum, compounded annually.
(d) In the event a notice of claim to Aria Infotek results in the extension of the Restriction Period beyond the date which is two years after the Closing Date (the "Second Anniversary"), (i) Aria Infotek shall, within 60 days following the Second Anniversary, be entitled to irrevocably and unconditionally surrender for cancellation and destruction Restricted Notes outstanding on the date of such surrender, (together with all rights and entitlements thereunder or relating thereto), in an aggregate principal amount no greater than the amount (if any) by which the aggregate amount of Restricted Notes outstanding at such time, exceeds two-hundred percent (200%) of the aggregate of all amounts then being claimed by Purchaser against Aria Infotek under any and all Transaction Documents (such excess, the "Excess Claim Amount"), being Restricted Notes 25 <PAGE> having the latest stated maturities of all Restricted Notes; and (ii) Purchaser shall contemporaneously with such surrender issue one or more Promissory Notes having an aggregate principal amount equal to the Excess Claim Amount, with each such Promissory Note, having a principle amount equal toIssuer, and a stated maturity the same as, a Restricted Note (or part thereof) so surrendered.
(e) If, on the date the Restriction Period expires, the aggregate principal amount of all of the Restricted Notes outstanding on such date exceeds the sum of all Eligible Amounts then owing or due or otherwise payable to Purchaser (such excess, the "Excess Security Amount"), (i) Aria Infotek shall, within 60 days of the expiration of the Restriction Period, be entitled to irrevocably and unconditionally surrender for cancellation and destruction Restricted Notes outstanding on such date, (together with all rights and entitlements thereunder or relating thereto), in an aggregate principal amount no greater than the Excess Security Amount, being Restricted Notes having the latest stated maturities of all Restricted Notes; and (ii) Purchaser shall contemporaneously with such surrender issue one or more Promissory Notes having an aggregate principal amount equal to the Excess Security Amount, with each such Promissory Note, having a principal amount equal to, and a stated maturity the same as, a Restricted Note (or part thereof) so surrendered.
(f) To the extent Purchaser gives Aria Infotek notice of any set-off or deduction of any Eligible Amount under this Agreement, Aria Infotek shall within 5 Business Days thereof irrevocably and unconditionally surrender for cancellation and destruction to Purchaser, any and all Restricted Notes against which such set-off or deduction has been made, provided however to the extent any such set-off or deduction is made 26 <PAGE> against less than the full principal amount Holder of a Restricted Note, Purchaser shall issue a replacement Restricted Note for the portion by such Holder’s acceptance of such principal amount not so set-off with Restricted Note, will be deemed to be bound by the same maturity as restrictions on transfer applicable to such Restricted Note.
(gii) All reasonable costs and expenses relating Until the Resale Restriction Termination Date, any Restricted Note (or any security issued in exchange therefor or substitution thereof, except any Ordinary Shares issued upon the exchange thereof, to any exchange which the provisions of Section 3.06(b)(ii) below shall apply) issued under this Indenture, if any, will bear the Restricted Notes Legend unless:
(A) such Note, since last held by the Issuer or the Guarantor or an affiliate of the Issuer or the Guarantor (within the meaning of Rule 144), if ever, was transferred (1) to a Person other than (x) the Issuer or the Guarantor or (y) an affiliate of the Issuer or the Guarantor (within the meaning of Rule 144) or a Person that was an affiliate of the Issuer or the Guarantor (within the meaning of Rule 144) within the three months immediately preceding such transfer and (2) pursuant to a registration statement that was effective under the Securities Act at the time of such transfer;
(B) such Note was transferred (1) to a Person other than (x) the Issuer or the Guarantor or (y) an affiliate of the Issuer or the Guarantor (within the meaning of Rule 144) or a Person that was an affiliate of the Issuer or the Guarantor (within the meaning of Rule 144) within the three months immediately preceding such transfer and (2) pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act; or
(C) the Issuer delivers written notice to the Trustee and the Registrar stating that the Restricted Notes Legend may be removed from such Note and all Applicable Procedures have been complied with, if applicable.
(iii) In addition, until the Resale Restriction Termination Date, no transfer of any Restricted Note will be registered by the Registrar prior to the Resale Restriction Termination Date unless the transferring Holder delivers the form of assignment set forth on the Restricted Note, with the appropriate box checked, to the Trustee.
(iv) Any Note that is repurchased or owned by any affiliate of the Issuer or the Guarantor (within the meaning of Rule 144) may not be resold by such affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such note no longer being a “restricted security” (as defined in Rule 144 under the Securities Act).
(v) On and after the Resale Restriction Termination Date, any Note (or any security issued in exchange therefor or substitution thereof, except any Ordinary Shares issued upon the exchange thereof) will bear the Restricted Notes Legend at any time the Issuer reasonably determinates that, to comply with law, such Note (or such securities issued in exchange for Promissory or substitution of a Note) must bear the Restricted Notes as provided in this Section 3.5 shall be paid exclusively by Aria InfotekLegend.
Appears in 1 contract
Sources: Indenture (Jazz Pharmaceuticals PLC)