Payments to Holders. (a) The Portuguese Paying Agent or any other relevant Paying Agent from time to time shall make or cause to be made payments of interest or, as the case may be, principal in respect of the Notes in accordance with the Conditions, provided however that: (i) by no earlier than 20 and no later than 16 days prior to any date on which a payment (either of principal or interest) is scheduled to be made, the Principal Paying Agent shall inform the Issuer that the relevant payment will fall due and which is the relevant amount (of principal and/or interest) which will be due and (if any) the Interbolsa fees due and payable by the Issuer on such date (which fees, if any, the Portuguese Paying Agent shall inform the Principal Paying Agent in advance). Such information will be sent by the Principal Paying Agent to the Issuer by email, in accordance with the notice details provided for in Clause 9.3; (ii) by no later than 15 Business Days prior to any date on which a payment (either of principal or interest) is scheduled to be made to the Holders (Information Date), the Issuer shall provide Interbolsa with a written notification, with a copy to the Paying Agents, stating that the relevant payment will be made and containing all necessary information for the purpose of carrying out such payment, including the identity of the relevant Paying Agent who shall make such payments on behalf of the Issuer; (iii) no later than 5 Business Days following the Information Date, the Portuguese Paying Agent shall provide to Interbolsa a file setting out the relevant principal and interest amounts to be paid under the Notes. The Portuguese Paying Agent confirms that it will provide to Interbolsa the standard written irrevocable confirmation, in terms acceptable by Interbolsa, that it will comply with the functions of a paying agent in relation to payments under the Notes (either of principal or interest, as the case may be), for the life of the Notes (without prejudice to the actual payments to be made by the Portuguese Paying Agent under such functions being subject to the Principal Paying Agent receiving the relevant funds from the Issuer, as foreseen in this Agreement). The Portuguese Paying Agent shall provide the Issuer with a copy of each irrevocable confirmation provided to Interbolsa pursuant to this Clause 5.3(a)(iii); and (iv) whilst the Notes are held through Interbolsa, payment of principal and interest in respect of the Notes will be (a) credited, on the relevant payment date and according to the applicable procedures and regulations, by the Portuguese Paying Agent (acting on behalf of the Issuer) to the payment current account held in the payment system of the TARGET2 by the Affiliate Member of Interbolsa whose control accounts are credited with such Notes and (b) thereafter credited by such Affiliate Member of Interbolsa from the aforementioned payment current accounts to the accounts of the Holders or through Euroclear and Clearstream, Luxembourg to the accounts with Euroclear and Clearstream, Luxembourg of the beneficial owners of those Notes, in accordance with the rules and procedures of Interbolsa, Euroclear or Clearstream, Luxembourg, as the case may be. Payments to the clearing system or to its order shall, to the extent amounts so paid and provided the Notes are still held on behalf of the clearing system, constitute the discharge of the Issuer from its corresponding obligations under the Notes. (b) Nothing contained in this Agreement shall require any Paying Agent to expend or risk their own funds or incur any liability in the performance of its duties or the exercise of any right, power, authority or discretion hereunder if they have justified grounds for believing that the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to them, in particular, the Paying Agents shall not be obliged (but shall be entitled) to make payments of principal or interest in respect of the Notes until they have received the full amount of any payment due to them under Clause 5.1. (c) If any payment provided for in Clause 5.1(b) is made late but otherwise in accordance with the provisions of this Agreement, the Paying Agents shall nevertheless make payments in respect of the Notes as referred to in Clause 5.3(a) promptly following receipt by it of such payment. (d) Gross-up of payments (i) If the Issuer is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges as specifically contemplated in Condition 6, it shall give notice thereof to the Principal Paying Agent and the Portuguese Paying Agent as soon as it becomes aware of the requirement to make the withholding or deduction. (ii) If any Paying Agent is compelled to withhold or deduct any amount in respect of the Notes for or on account of any taxes, duties, assessments or governmental charges as specifically contemplated under the Conditions, other than by virtue of the relevant Holders failing to satisfy any certification or other requirement in respect of its Notes, the Principal Paying Agent shall give notice of that fact to the Issuer as soon as it becomes aware of the requirement to withhold or deduct. (e) The Paying Agents will not be responsible for making any deduction or withholding from any payment which they make under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by applicable law, which shall be made by each of the Affiliate Members of Interbolsa, in which event such Affiliate Member of Interbolsa shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted. (f) If any Paying Agent makes any payment in accordance with Clause 5.3(a) it shall be entitled to appropriate for its own account out of the funds received by it under Clause 5.1(a) an amount equal to the amount so paid by it. (g) Notwithstanding what is provided for in Clause 5.3(b), if any Paying Agent makes a payment in respect of the Notes on or after the due date for such payment under the Conditions at a time at which it has not received the full amount of the relevant payment due to it under Clause 5.1(a) and such Paying Agent is not able to be reimbursed by appropriation as described in Clause 5.3(f), then: (i) the Paying Agent shall notify the Issuer and the Principal Paying Agent of the amount so paid by it and the Notes in relation to which payment of principal interest was made; and (ii) subject to and to the extent of compliance by the Issuer with Clause 5.1(a) (whether or not at the due time), the Issuer shall reimburse such Paying Agent for (A) the amount so paid by it by payment out of the funds received by the Paying Agent or appropriated by it pursuant to Clause 5.3(f) and (B) interest on such amount from the date on which such Paying Agent made such payment until the date of reimbursement of such amount by paying the same by credit transfer to such account with such bank as the Paying Agent may by notice to the Issuer and the Principal Paying Agent have specified for the purpose, provided that any payment made under Clause 5.3(g)(ii)(A) shall satisfy pro tanto the Issuer’s obligations under Clause 5.1(a). (iii) Interest shall accrue for the purpose of Clause 5.3(g)(ii) (before and after judgment) on the basis of a year of 360 days in the case of an amount paid in euro and the actual number of days elapsed and at the rate per annum which is the aggregate of one per cent. per annum and the rate per annum specified by the relevant Paying Agent as reflecting its cost of funds for the time being in relation to the unpaid amount (and the relevant Paying Agent may, upon request, provide such reasonable evidence of the interest, cost, loss or expense which it incurs). (h) Except as ordered by a court of competent jurisdiction or required by law, the Paying Agents may deem and treat the person or entity registered in the Book Entry Registry as the holder of any Note and the absolute owner for all purposes (whether or not such Notes shall be overdue and notwithstanding any notice of ownership or otherwise). Proof of such registration is made by means of a certificate issued by the relevant Affiliate Member of Interbolsa pursuant to article 78 of the Portuguese Securities Code (“Código dos Valores Mobiliários”). (i) Each Paying Agent shall be bound to fulfil all legal and regulatory obligations applicable to it, namely the obligations arising to Paying Agents from the Portuguese Securities Code, as amended and from the regulations issued by the CMVM and by Interbolsa, the obligations arising from this Agreement and pursuant to the Conditions.
Appears in 2 contracts
Payments to Holders. (a) The Portuguese Paying Agent Holders of Notes of each Class shall, subject to the priorities and conditions set forth in Section 12.02(d) or any other relevant Paying Agent from time Section 6.08, be entitled to time shall make or cause to be made receive payments of interest orand principal on each Payment Date (including any Overdue Interest, as the case may be, Overdue Basic Principal Payments and Deferred Supplemental Principal Payments). Any payment of interest or principal in payable with respect of to the Notes in accordance with on the Conditions, provided however that:
(i) by no earlier than 20 and no later than 16 days prior to any date on which a payment (either of principal or interest) is scheduled to be made, the Principal Paying Agent applicable Payment Date shall inform the Issuer that the relevant payment will fall due and which is the relevant amount (of principal and/or interest) which will be due and (if any) the Interbolsa fees due and payable by the Issuer on such date (which fees, if any, the Portuguese Paying Agent shall inform the Principal Paying Agent in advance). Such information will be sent by the Principal Paying Agent to the Issuer by email, in accordance with the notice details provided for in Clause 9.3;
(ii) by no later than 15 Business Days prior to any date on which a payment (either of principal or interest) is scheduled to be made to the Holders (Information Date), Person in whose name such Note is registered at the Issuer shall provide Interbolsa with a written notification, with a copy to the Paying Agents, stating that the relevant payment will be made and containing all necessary information for the purpose close of carrying out such payment, including the identity of the relevant Paying Agent who shall make such payments on behalf of the Issuer;
(iii) no later than 5 Business Days following the Information Date, the Portuguese Paying Agent shall provide to Interbolsa a file setting out the relevant principal and interest amounts to be paid under the Notes. The Portuguese Paying Agent confirms that it will provide to Interbolsa the standard written irrevocable confirmation, in terms acceptable by Interbolsa, that it will comply with the functions of a paying agent in relation to payments under the Notes (either of principal or interest, as the case may be), for the life of the Notes (without prejudice to the actual payments to be made by the Portuguese Paying Agent under such functions being subject to the Principal Paying Agent receiving the relevant funds from the Issuer, as foreseen in this Agreement). The Portuguese Paying Agent shall provide the Issuer with a copy of each irrevocable confirmation provided to Interbolsa pursuant to this Clause 5.3(a)(iii); and
(iv) whilst the Notes are held through Interbolsa, payment of principal and interest in respect of the Notes will be (a) credited, business on the relevant payment date and according to the applicable procedures and regulations, by the Portuguese Paying Agent (acting on behalf of the Issuer) to the payment current account held Record Date for such Payment Date in the payment system of the TARGET2 by the Affiliate Member of Interbolsa whose control accounts are credited with such Notes and (b) thereafter credited by such Affiliate Member of Interbolsa from the aforementioned payment current accounts to the accounts of the Holders or through Euroclear and Clearstream, Luxembourg to the accounts with Euroclear and Clearstream, Luxembourg of the beneficial owners of those Notes, manner provided in accordance with the rules and procedures of Interbolsa, Euroclear or Clearstream, Luxembourg, as the case may be. Payments to the clearing system or to its order shall, to the extent amounts so paid and provided the Notes are still held on behalf of the clearing system, constitute the discharge of the Issuer from its corresponding obligations under the NotesSection 3.02(c).
(b) Nothing contained in this Agreement shall require any Paying Agent to expend or risk their own funds or incur any liability All reductions in the performance Note Principal Balance of its duties a Note (or the exercise of any right, power, authority one or discretion hereunder if they have justified grounds for believing that the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to them, in particular, the Paying Agents shall not be obliged (but shall be entitledmore Predecessor Notes) to make effected by payments of principal or interest in respect made on any Payment Date shall be binding upon all Holders of the Notes until they have received the full amount such Note and of any Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not such payment due to them under Clause 5.1is noted on such Note.
(c) If any payment The Indenture Trustee shall pay to each Holder of record as of the related Record Date either (i) by wire transfer, in immediately available funds to the account of such Holder at a bank or other entity having appropriate facilities therefor, if such Holder shall have provided to the Indenture Trustee appropriate written instructions at least five Business Days prior to related Payment Date (which instructions shall remain in effect for subsequent Payment Dates unless revoked by such Holder), or (ii) if the Indenture Trustee has not received timely written instructions regarding the account of a Holder, by check mailed to such Holder at the address of such Holder appearing in Clause 5.1(b) is made late but otherwise in accordance with the provisions of this AgreementNote Register, the Paying Agents shall nevertheless make payments amounts to be paid to such Holder pursuant to such Holder's Notes; provided, that so long as the Notes are registered in respect the name of the Notes as referred Security Depository such payments shall be made to the nominee thereof in Clause 5.3(a) promptly following receipt by it of such paymentimmediately available funds.
(d) Gross-up of payments
(i) If Unless the Issuer is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges as specifically contemplated in Condition 6, it shall give notice thereof to the Principal Paying Agent and the Portuguese Paying Agent as soon as it becomes aware of the requirement to make the withholding or deduction.
(ii) If any Paying Agent is compelled to withhold or deduct any amount in respect of the Notes for or on account of any taxes, duties, assessments or governmental charges as specifically contemplated under the Conditions, other than by virtue of the relevant Holders failing to satisfy any certification or other requirement in respect of its Notes, the Principal Paying Agent shall give notice of that fact to the Issuer as soon as it becomes aware of the requirement to withhold or deduct.
(e) The Paying Agents will not be responsible for making any deduction or withholding from any payment which they make under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by applicable law, which shall be made by each of the Affiliate Members of Interbolsa, in which event such Affiliate Member of Interbolsa shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted.
(f) If any Paying Agent makes any payment in accordance with Clause 5.3(a) it shall be entitled to appropriate for its own account out of the funds received by it under Clause 5.1(a) an amount equal to the amount so paid by it.
(g) Notwithstanding what is provided for in Clause 5.3(b), if any Paying Agent makes a payment in respect of the Notes on or after the due date for such payment under the Conditions at a time at which it has not received the full amount of the relevant payment due to it under Clause 5.1(a) and such Paying Agent is not able to be reimbursed by appropriation as described in Clause 5.3(f), then:
(i) the Paying Agent shall notify the Issuer and the Principal Paying Agent of the amount so paid by it and the Notes in relation to which payment of principal interest was made; and
(ii) subject to and to the extent of compliance by the Issuer with Clause 5.1(a) (whether or not at the due time), the Issuer shall reimburse such Paying Agent for (A) the amount so paid by it by payment out of the funds received by the Paying Agent or appropriated by it pursuant to Clause 5.3(f) and (B) interest on such amount from the date on which such Paying Agent made such payment until the date of reimbursement of such amount by paying the same by credit transfer to such account with such bank as the Paying Agent may by notice to the Issuer and the Principal Paying Agent have specified for the purpose, provided that any payment made under Clause 5.3(g)(ii)(A) shall satisfy pro tanto the Issuer’s obligations under Clause 5.1(a).
(iii) Interest shall accrue for the purpose of Clause 5.3(g)(ii) (before and after judgment) on the basis of a year of 360 days Controlling Party otherwise directs in the case of an amount paid in euro acceleration of the Notes following the occurrence of an Event of Default, (a) all payments of principal and interest with respect to the Class A-1 Notes, the Class A-2 Notes and the actual number of days elapsed and at the rate per annum which is the aggregate of one per cent. per annum and the rate per annum specified by the relevant Paying Agent as reflecting its cost of funds for the time being in relation to the unpaid amount (and the relevant Paying Agent may, upon request, provide such reasonable evidence of the interest, cost, loss or expense which it incurs).
(h) Except as ordered by a court of competent jurisdiction or required by law, the Paying Agents may deem and treat the person or entity registered in the Book Entry Registry as the holder of any Note and the absolute owner for all purposes (whether or not such Class B Notes shall be overdue and notwithstanding any notice of ownership or otherwise). Proof of such registration is made by means of a certificate issued by payable solely from amounts held in the relevant Affiliate Member of Interbolsa pursuant to article 78 NARCAT Collection Account or, in the case of the Portuguese Securities Code Class A-1 Notes and the Class A-2 Notes, from amounts funded under the Class A Note Policy, and (“Código dos Valores Mobiliários”).
(ib) Each Paying Agent all payments of principal and interest with respect to the Class A-3 Notes shall be bound to fulfil all legal and regulatory obligations applicable to it, namely payable solely from amounts held in the obligations arising to Paying Agents CARCAT Collection Account or from amounts funded under the Portuguese Securities Code, as amended and from the regulations issued by the CMVM and by Interbolsa, the obligations arising from this Agreement and pursuant to the ConditionsClass A Note Policy.
Appears in 1 contract
Samples: Indenture (Andersons Inc)
Payments to Holders. No payment shall be made with respect to the principal amount at maturity, Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental Change Redemption Price, or interest, if any, in respect of, the Securities by or on behalf of an Issuer (a) The Portuguese Paying Agent or any other relevant Paying Agent from time including, but not limited to, the Redemption Price with respect to time shall make or cause the Securities to be made payments of interest orcalled for redemption in accordance with Article 11 or the Fundamental Change Redemption Price with respect to Securities submitted for repurchase in accordance with Article 14, as the case may be, principal as provided in respect this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of the Notes in accordance with the ConditionsSection 13.05, provided however thatif:
(ia) by no earlier than 20 and no later than 16 days prior to a default in the payment of principal, premium, interest, rent or other obligations due on any date on which a payment (either of principal Company Senior Indebtedness or interest) is scheduled to be made, the Principal Paying Agent shall inform the Issuer that the relevant payment will fall due and which is the relevant amount (of principal and/or interest) which will be due and (if any) the Interbolsa fees due and payable by the Issuer on such date (which fees, if any, the Portuguese Paying Agent shall inform the Principal Paying Agent in advance). Such information will be sent by the Principal Paying Agent to the Issuer by email, in accordance with the notice details provided for in Clause 9.3;
(ii) by no later than 15 Business Days prior to any date on which a payment (either of principal or interest) is scheduled to be made to the Holders (Information Date), the Issuer shall provide Interbolsa with a written notification, with a copy to the Paying Agents, stating that the relevant payment will be made and containing all necessary information for the purpose of carrying out such payment, including the identity of the relevant Paying Agent who shall make such payments on behalf of the Issuer;
(iii) no later than 5 Business Days following the Information Date, the Portuguese Paying Agent shall provide to Interbolsa a file setting out the relevant principal and interest amounts to be paid under the Notes. The Portuguese Paying Agent confirms that it will provide to Interbolsa the standard written irrevocable confirmation, in terms acceptable by Interbolsa, that it will comply with the functions of a paying agent in relation to payments under the Notes (either of principal or interestCo-Obligor Senior Indebtedness, as the case may be), for the life of the Notes has occurred and is continuing (without prejudice to the actual payments to be made by the Portuguese Paying Agent under such functions being subject to the Principal Paying Agent receiving the relevant funds from the Issueror, as foreseen in this Agreement). The Portuguese Paying Agent shall provide the Issuer with a copy of each irrevocable confirmation provided to Interbolsa pursuant to this Clause 5.3(a)(iii); and
(iv) whilst the Notes are held through Interbolsa, payment of principal and interest in respect of the Notes will be (a) credited, on the relevant payment date and according to the applicable procedures and regulations, by the Portuguese Paying Agent (acting on behalf of the Issuer) to the payment current account held in the payment system case of the TARGET2 by the Affiliate Member of Interbolsa whose control accounts are credited with such Notes and (b) thereafter credited by such Affiliate Member of Interbolsa from the aforementioned payment current accounts to the accounts of the Holders Company Senior Indebtedness or through Euroclear and Clearstream, Luxembourg to the accounts with Euroclear and Clearstream, Luxembourg of the beneficial owners of those Notes, in accordance with the rules and procedures of Interbolsa, Euroclear or Clearstream, LuxembourgCo-Obligor Senior Indebtedness, as the case may be. Payments , for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior Indebtedness), unless and until such default shall have been cured or waived or shall have ceased to the clearing system or to its order shall, to the extent amounts so paid and provided the Notes are still held on behalf of the clearing system, constitute the discharge of the Issuer from its corresponding obligations under the Notes.exist; or
(b) Nothing contained in this Agreement shall require any Paying Agent default (other than a payment default) on Designated Senior Indebtedness of such Issuer occurs and is continuing that then permits holders of such Designated Senior Indebtedness to expend or risk their own funds or incur any liability in accelerate its maturity and the performance Trustee receives a notice of its duties the default (a "PAYMENT BLOCKAGE NOTICE") from the Company or the exercise Co-Obligor, as the case may be, or a Representative of Designated Senior Indebtedness of such Issuer or a holder of Designated Senior Indebtedness of such Issuer. If the Trustee receives any Payment Blockage Notice pursuant to clause (b) above, no subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and until at least 365 days shall have elapsed since the initial effectiveness of the immediately prior Payment Blockage Notice. No nonpayment default that existed or was continuing on the date of delivery of any right100 108 Payment Blockage Notice to the Trustee (unless such default was waived, power, authority cured or discretion hereunder if they have justified grounds for believing that the repayment of such funds or adequate indemnity againstotherwise ceased to exist and thereafter subsequently reoccurred) shall be, or security for, such risk or liability is not reasonably assured to them, in particularbe made, the Paying Agents basis for a subsequent Payment Blockage Notice. An Issuer may and shall not be obliged (but shall be entitled) to make resume payments of principal or interest on and distributions in respect of the Notes until they have received Securities upon the full amount of any payment due to them under Clause 5.1.
(c) If any payment provided for in Clause 5.1(b) is made late but otherwise in accordance with the provisions of this Agreement, the Paying Agents shall nevertheless make payments in respect of the Notes as referred to in Clause 5.3(a) promptly following receipt by it of such payment.
(d) Gross-up of payments
(i) If the Issuer is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges as specifically contemplated in Condition 6, it shall give notice thereof to the Principal Paying Agent and the Portuguese Paying Agent as soon as it becomes aware of the requirement to make the withholding or deduction.
(ii) If any Paying Agent is compelled to withhold or deduct any amount in respect of the Notes for or on account of any taxes, duties, assessments or governmental charges as specifically contemplated under the Conditions, other than by virtue of the relevant Holders failing to satisfy any certification or other requirement in respect of its Notes, the Principal Paying Agent shall give notice of that fact to the Issuer as soon as it becomes aware of the requirement to withhold or deduct.
(e) The Paying Agents will not be responsible for making any deduction or withholding from any payment which they make under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by applicable law, which shall be made by each of the Affiliate Members of Interbolsa, in which event such Affiliate Member of Interbolsa shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted.
(f) If any Paying Agent makes any payment in accordance with Clause 5.3(a) it shall be entitled to appropriate for its own account out of the funds received by it under Clause 5.1(a) an amount equal to the amount so paid by it.
(g) Notwithstanding what is provided for in Clause 5.3(b), if any Paying Agent makes a payment in respect of the Notes on or after the due date for such payment under the Conditions at a time at which it has not received the full amount of the relevant payment due to it under Clause 5.1(a) and such Paying Agent is not able to be reimbursed by appropriation as described in Clause 5.3(f), thenearlier of:
(i) in the Paying Agent shall notify case of a payment default, the Issuer and date upon which the Principal Paying Agent of the amount so paid by it and the Notes in relation default is cured or waived or ceases to which payment of principal interest was made; andexist, or
(ii) subject in the case of a default referred to and to the extent of compliance by the Issuer with Clause 5.1(ain clause (b) (whether or not at the due time)above, the Issuer shall reimburse such Paying Agent for (A) the amount so paid by it by payment out earlier of the funds received by the Paying Agent or appropriated by it pursuant to Clause 5.3(f) and (B) interest on such amount from the date on which such Paying Agent made default is cured or waived or ceases to exist or 179 days after the date on which the applicable Payment Blockage Notice is received by the Trustee if the maturity of the applicable Designated Senior Indebtedness has not been accelerated and no Payment Default with respect to any such Designated Senior Indebtedness has occurred which has not been cured or waived (in which case clause (i) shall instead be applicable), unless this Article 13 otherwise prohibits the payment or distribution at the time of such payment until or distribution (including without limitation, in the date case of reimbursement default referred to in clause (b) above, as a result of a payment default with respect to the applicable Senior Indebtedness as a consequence of the acceleration of the maturity thereof or otherwise). Upon any payment by an Issuer, or distribution of assets of such Issuer of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of such Issuer, whether voluntary or involuntary or in bankruptcy, moratorium of payments, insolvency, receivership or other proceedings, all amounts due or to become due upon all Co-Obligor Senior Indebtedness or Company Senior Indebtedness, as the case may be, shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Indebtedness, or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Indebtedness before any payment is made on account of the principal amount at maturity, Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental Change Redemption Price, or interest, if any, in respect of the Securities (except payments by paying the same Issuers made pursuant to Article 4 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or liquidation or reorganization of an Issuer or bankruptcy, insolvency, receivership or other proceeding, any payment 101 109 by credit transfer an Issuer, or distribution of assets of an Issuer of any kind or character, whether in cash, property or securities, to which the Holders or the Trustee would be entitled, except for the provision of this Article 13, shall (except as aforesaid) be paid by such Issuer or by any receiver, trustee in bankruptcy, moratorium of payments, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them or it, directly to the holders of Company Senior Indebtedness or Co-Obligor Senior Indebtedness, as the case may be, (pro rata to such account with such bank as the Paying Agent may by notice to the Issuer and the Principal Paying Agent have specified for the purpose, provided that any payment made under Clause 5.3(g)(ii)(A) shall satisfy pro tanto the Issuer’s obligations under Clause 5.1(a).
(iii) Interest shall accrue for the purpose of Clause 5.3(g)(ii) (before and after judgment) holders on the basis of the respective amounts of such Senior Indebtedness held by such holders, or as otherwise required by law or a year court order) or their Representative or Representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any such Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all such Senior Indebtedness in full, in cash or other payment satisfactory to the holders of 360 days such Senior Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders or to the Trustee. For purposes of this Article 13, the words, "cash, property or securities" shall not be deemed to include a payment or distribution of stock of an Issuer as reorganized or readjusted, or securities of an Issuer or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 13 with respect to the Securities to the payment of all Company Senior Indebtedness or Co-Obligor Senior Indebtedness, as the case may be, which may at the time be outstanding; provided that (i) such Senior Indebtedness is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness (other than leases which are not assumed by the Issuer or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The merger of an Issuer into another corporation or the liquidation or dissolution of an Issuer following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon the terms and conditions provided for in Article 7 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 13.02 if such other corporation shall, as a part of such merger, conveyance or transfer, comply with the conditions stated in Article 7. In the event of the acceleration of the Securities because of an Event of Default, no payment or distribution shall be made to the Trustee or any Holder of Securities in respect of the principal amount at maturity, Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental Change Redemption Price, or interest, if any, in respect of, the Securities by an Issuer (including, but 102 110 not limited to, the Redemption Price with respect to the Securities called for redemption in accordance with Article 11 or the Fundamental Change Redemption Price with respect to Securities submitted for repurchase in accordance with Article 14, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 13.05, until all Company Senior Indebtedness or Co-Obligor Senior Indebtedness as the case may be, has been paid in euro and the actual number of days elapsed and at the rate per annum which is the aggregate of one per cent. per annum and the rate per annum specified by the relevant Paying Agent as reflecting its cost of funds for the time being full in relation cash or other payment satisfactory to the unpaid amount (and holders of such Senior Indebtedness or such acceleration is rescinded in accordance with the relevant Paying Agent may, upon request, provide such reasonable evidence terms of this Indenture. If payment of the interest, cost, loss or expense which it incurs).
(h) Except as ordered by a court Securities is accelerated because of competent jurisdiction or required by lawan Event of Default, the Paying Agents may deem and treat Issuers shall promptly notify holders of their Senior Indebtedness of the person acceleration. In the event that, notwithstanding the foregoing provisions, any payment or entity registered in the Book Entry Registry as the holder distribution of assets of an Issuer of any Note and the absolute owner for all purposes kind or character, whether in cash, property or securities (whether or not such Notes shall be overdue and notwithstanding any notice including, without limitation, by way of ownership setoff or otherwise). Proof , prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before all of the Company Senior Indebtedness or Co-Obligor Senior Indebtedness as the case may be, is paid in full in cash or other payment satisfactory to the holders of such registration Senior Indebtedness, or provision is made by means for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of a certificate issued their Senior Indebtedness, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their Representative or Representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any such Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the relevant Affiliate Member Issuers, for application to the payment of Interbolsa all such Senior Indebtedness remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full in cash or other payment satisfactory to the holders of such Senior Indebtedness, after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Indebtedness. Nothing in this Article 13 shall apply to claims of, or payments to, the Trustee under or pursuant to article 78 of the Portuguese Securities Code (“Código dos Valores Mobiliários”).
(i) Each Paying Agent Section 6.07. This Section 13.02 shall be bound to fulfil all legal and regulatory obligations applicable to it, namely the obligations arising to Paying Agents from the Portuguese Securities Code, as amended and from the regulations issued by the CMVM and by Interbolsa, the obligations arising from this Agreement and pursuant subject to the Conditionsfurther provisions of Section 13.05.
Appears in 1 contract
Samples: Indenture (Veritas Software Corp)
Payments to Holders. No payment shall be made with respect to the Notes, including the payment of principal of or interest on all Notes and the Fundamental Change Purchase Price with respect to the Notes subject to purchase in accordance with Article 14, except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 15.05, if either of the following occurs:
(a) The Portuguese Paying Agent the Company defaults in its obligations to pay the principal, premium, interest or other amounts due on any Senior Debt, including a default under any redemption or repurchase obligation, and the default continues beyond any period of grace that the Company has to make those payments (a “Payment Default”); or
(b) any other relevant Paying Agent default occurs and is continuing on any Designated Senior Debt and (i) the default permits the holders of the Designated Senior Debt to accelerate its maturity and a Responsible Officer of the Trustee has received at the Corporate Trust Office a written notice (a “Payment Blockage Notice”) of the default from time the Company, the holder of such Designated Senior Debt or a Representative of the Designated Senior Debt (a “Non-Payment Default”). Notwithstanding the foregoing, following the delivery of a Payment Blockage Notice, no new Payment Blockage Notice may be delivered and no new period of payment blockage with respect to time shall make the Notes may begin until both (i) 365 consecutive days have elapsed since the effectiveness of the immediately prior Payment Blockage Notice and (ii) all scheduled payments of principal and interest with respect to the Notes that have come due have been paid in full in cash. No Non-Payment Default that existed or cause was continuing on the date of delivery of any Payment Blockage Notice with respect to Designated Senior Debt whose holders or Representative delivered the Payment Blockage Notice may be made the basis of a subsequent Payment Blockage Notice by the holders or Representative of such Designated Senior Debt, whether or not within a period of 365 consecutive days. The Company may and shall resume payments of interest or, as the case may be, principal on and distributions in respect of the Notes upon:
(1) in the case of a Payment Default, the date upon which the default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (x) the date on which such Non-Payment Default is cured or waived or ceases to exist, in each case as and to the extent permitted under the documentation for the Designated Senior Debt, and (y) the 179th day after the date on which the applicable Payment Blockage Notice is received, in either case, unless the maturity of the Designated Senior Debt has been accelerated or this Article 15 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the Company (whether voluntary or involuntary) or in bankruptcy, insolvency, receivership or similar proceedings, all amounts due or to become due upon all Senior Debt shall first be paid in full in cash, or other payments satisfactory to the holders of Senior Debt, before any payment of cash, property or securities is made on account of the principal of or interest on the Notes or the Fundamental Change Purchase Price with respect to the Notes subject to purchase in accordance with the Conditions, provided however that:
Article 14 (i) by no earlier than 20 and no later than 16 days prior to any date on which a payment (either of principal or interest) is scheduled to be made, the Principal Paying Agent shall inform the Issuer that the relevant payment will fall due and which is the relevant amount (of principal and/or interest) which will be due and (if any) the Interbolsa fees due and payable by the Issuer on such date (which fees, if any, the Portuguese Paying Agent shall inform the Principal Paying Agent in advance). Such information will be sent by the Principal Paying Agent to the Issuer by email, in accordance with the notice details provided for in Clause 9.3;
(ii) by no later than 15 Business Days prior to any date on which a payment (either of principal or interest) is scheduled to be made to the Holders (Information Date), the Issuer shall provide Interbolsa with a written notification, with a copy to the Paying Agents, stating that the relevant payment will be made and containing all necessary information for the purpose of carrying out such payment, including the identity of the relevant Paying Agent who shall make such payments on behalf of the Issuer;
(iii) no later than 5 Business Days following the Information Date, the Portuguese Paying Agent shall provide to Interbolsa a file setting out the relevant principal and interest amounts to be paid under the Notes. The Portuguese Paying Agent confirms that it will provide to Interbolsa the standard written irrevocable confirmation, in terms acceptable by Interbolsa, that it will comply with the functions of a paying agent in relation to payments under the Notes (either of principal or interest, as the case may be), for the life of the Notes (without prejudice to the actual payments to be made by the Portuguese Paying Agent under such functions being subject to the Principal Paying Agent receiving the relevant funds from the Issuer, as foreseen in this Agreement). The Portuguese Paying Agent shall provide the Issuer with a copy of each irrevocable confirmation provided to Interbolsa pursuant to this Clause 5.3(a)(iii); and
(iv) whilst the Notes are held through Interbolsa, payment of principal and interest in respect of the Notes will be (a) credited, on the relevant payment date and according to the applicable procedures and regulations, by the Portuguese Paying Agent (acting on behalf of the Issuer) to the payment current account held in the payment system of the TARGET2 by the Affiliate Member of Interbolsa whose control accounts are credited with such Notes and (b) thereafter credited by such Affiliate Member of Interbolsa from the aforementioned payment current accounts to the accounts of the Holders or through Euroclear and Clearstream, Luxembourg to the accounts with Euroclear and Clearstream, Luxembourg of the beneficial owners of those Notes, in accordance with the rules and procedures of Interbolsa, Euroclear or Clearstream, Luxembourg, as the case may be. Payments to the clearing system or to its order shallexcept, to the extent amounts so paid and provided the Notes are still held on behalf of the clearing system, constitute the discharge of the Issuer from its corresponding obligations under the Notes.
(b) Nothing contained in this Agreement shall require any Paying Agent to expend or risk their own funds or incur any liability in the performance of its duties or the exercise of any right, power, authority or discretion hereunder if they have justified grounds for believing that the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to them, in particular, the Paying Agents shall not be obliged (but shall be entitled) to make payments of principal or interest in respect of the Notes until they have received the full amount of any payment due to them under Clause 5.1.
(c) If any payment provided for in Clause 5.1(b) is made late but otherwise in accordance with the provisions of this Agreement, the Paying Agents shall nevertheless make payments in respect of the Notes as referred to in Clause 5.3(a) promptly following receipt by it of such payment.
(d) Gross-up of payments
(i) If the Issuer is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges as specifically contemplated in Condition 6, it shall give notice thereof to the Principal Paying Agent and the Portuguese Paying Agent as soon as it becomes aware of the requirement to make the withholding or deduction.
(ii) If any Paying Agent is compelled to withhold or deduct any amount in respect of the Notes for or on account of any taxes, duties, assessments or governmental charges as specifically contemplated under the Conditions, other than by virtue of the relevant Holders failing to satisfy any certification or other requirement in respect of its Notes, the Principal Paying Agent shall give notice of that fact to the Issuer as soon as it becomes aware of the requirement to withhold or deduct.
(e) The Paying Agents will not be responsible for making any deduction or withholding from any payment which they make under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by applicable law, which shall be payments made by each pursuant to Article 11 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or liquidation or reorganization of the Affiliate Members of InterbolsaCompany or bankruptcy, in which event such Affiliate Member of Interbolsa shall make such payment after such withholding insolvency, receivership or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted.
(f) If any Paying Agent makes other proceeding, any payment in accordance with Clause 5.3(a) it shall be entitled to appropriate for its own account out by the Company, or distribution of assets of the funds received by it under Clause 5.1(a) an amount equal Company of any kind or character, whether in cash, property or securities, to which the amount so paid by it.
(g) Notwithstanding what is provided for in Clause 5.3(b), if any Paying Agent makes a payment in respect Holders of the Notes on or after the due date Trustee would be entitled, except for the provision of this Article 15, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment under or distribution, or by the Conditions at a time at which it has not received the full amount Holders of the relevant payment due to it Notes or by the Trustee under Clause 5.1(a) and such Paying Agent is not able to be reimbursed this Indenture if received by appropriation as described in Clause 5.3(f)them or it, then:
(i) the Paying Agent shall notify the Issuer and the Principal Paying Agent of the amount so paid by it and the Notes in relation to which payment of principal interest was made; and
(ii) subject to and directly to the extent holders of compliance by the Issuer with Clause 5.1(a) Senior Debt (whether or not at the due time), the Issuer shall reimburse such Paying Agent for (A) the amount so paid by it by payment out of the funds received by the Paying Agent or appropriated by it pursuant to Clause 5.3(f) and (B) interest on such amount from the date on which such Paying Agent made such payment until the date of reimbursement of such amount by paying the same by credit transfer pro rata to such account with such bank as the Paying Agent may by notice to the Issuer and the Principal Paying Agent have specified for the purpose, provided that any payment made under Clause 5.3(g)(ii)(A) shall satisfy pro tanto the Issuer’s obligations under Clause 5.1(a).
(iii) Interest shall accrue for the purpose of Clause 5.3(g)(ii) (before and after judgment) holders on the basis of the respective amounts of Senior Debt held by such holders, or as otherwise required by law or a year court order) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Debt may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt in full in cash, or other payment satisfactory to the holders of 360 days in the case of an amount paid in euro and the actual number of days elapsed and at the rate per annum which is the aggregate of one per cent. per annum and the rate per annum specified by the relevant Paying Agent as reflecting its cost of funds Senior Debt, after giving effect to any concurrent payment or distribution to or for the time being in relation holders of Senior Debt, before any payment or distribution is made to the unpaid amount (and the relevant Paying Agent may, upon request, provide such reasonable evidence Holders of the interestNotes or to the Trustee. The consolidation of the Company with, costor the merger of the Company into, loss another corporation or expense which it incurs).
(h) Except the liquidation or dissolution of the Company following the conveyance, transfer or lease of all or substantially all its property to another corporation upon the terms and conditions provided for in Article 10 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 15.02 if such other corporation shall, as ordered by a court part of competent jurisdiction such consolidation, merger, conveyance, transfer or required by lawlease, comply with the Paying Agents may deem and treat conditions stated in Article 10. In the person event that, notwithstanding the foregoing provisions, any payment or entity registered in distribution of assets of the Book Entry Registry as the holder Company of any Note and the absolute owner for all purposes kind or character, whether in cash, property or securities (whether or not such Notes shall be overdue and notwithstanding any notice including, without limitation, by way of ownership setoff or otherwise). Proof , prohibited by the foregoing, shall be received by the Trustee or the Holders of the Notes before all Senior Debt is paid in full, in cash or other payment satisfactory to the holders of Senior Debt, or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of Senior Debt, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full, in cash or other payment satisfactory to the holders of Senior Debt or their Representative, after giving effect to any concurrent payment or distribution to or for the holders of such registration is made by means of a certificate issued by Senior Debt. Nothing in this Section 15.02 shall apply to claims of, or payments to, the relevant Affiliate Member of Interbolsa Trustee under or pursuant to article 78 of the Portuguese Securities Code (“Código dos Valores Mobiliários”).
(i) Each Paying Agent Section 5.05 and Section 6.06. This Section 15.02 shall be bound to fulfil all legal and regulatory obligations applicable to it, namely the obligations arising to Paying Agents from the Portuguese Securities Code, as amended and from the regulations issued by the CMVM and by Interbolsa, the obligations arising from this Agreement and pursuant subject to the Conditionsfurther provisions of Section 15.05.
Appears in 1 contract
Payments to Holders. (a) The Portuguese Paying Agent or any other relevant Paying Agent from time to time shall make or cause to be made payments of interest or, as the case may be, principal in respect of the Notes in accordance with the Conditions, provided however that:
(i) by no earlier than 20 and no later than 16 days prior to any date on which a payment (either of principal or interest) is scheduled to be made, the Principal Paying Agent shall inform the Issuer that the relevant payment will fall due and which is the relevant amount (of principal and/or interest) which will be due and (if any) the Interbolsa fees due and payable by the Issuer on such date (which fees, if any, the Portuguese Paying Agent shall inform the Principal Paying Agent in advance). Such information will be sent by the Principal Paying Agent to the Issuer by email, in accordance with the notice details provided for in Clause 9.3;
(ii) by no later than 15 Business Days prior to any date on which a payment (either of principal or interest) is scheduled to be made to the Holders (Information Date), the Issuer shall provide Interbolsa with a written notification, with a copy to the Paying Agents, stating that the relevant payment will be made and containing all necessary information for the purpose of carrying out such payment, including the identity of the relevant Paying Agent who shall make such payments on behalf of the Issuer;
(iii) no later than 5 Business Days following the Information Date, the Portuguese Paying Agent shall provide to Interbolsa a file setting out the relevant principal and interest amounts to be paid under the Notes. (The Portuguese Paying Agent confirms that it will provide to Interbolsa the standard written irrevocable confirmation, in terms acceptable by Interbolsa, that it will comply with the functions of a paying agent in relation to payments under the Notes (either of principal or interest, as the case may be), for the life of the Notes (without prejudice to the actual payments to be made by the Portuguese Paying Agent under such functions being subject to the Principal Paying Agent receiving the relevant funds from the Issuer, as foreseen in this Agreement). The Portuguese Paying Agent shall provide the Issuer with a copy of each irrevocable confirmation provided to Interbolsa pursuant to this Clause 5.3(a)(iii)); and
(iv) whilst the Notes are held through Interbolsa, payment of principal and interest in respect of the Notes will be (a) credited, on the relevant payment date and according to the applicable procedures and regulations, by the Portuguese Paying Agent (acting on behalf of the Issuer) to the payment current account held in the payment system of the TARGET2 by the Affiliate Member of Interbolsa whose control accounts are credited with such Notes and (b) thereafter credited by such Affiliate Member of Interbolsa from the aforementioned payment current accounts to the accounts of the Holders or through Euroclear and Clearstream, Luxembourg to the accounts with Euroclear and Clearstream, Luxembourg of the beneficial owners of those Notes, in accordance with the rules and procedures of Interbolsa, Euroclear or Clearstream, Luxembourg, as the case may be. Payments to the clearing system or to its order shall, to the extent amounts so paid and provided the Notes are still held on behalf of the clearing system, constitute the discharge of the Issuer from its corresponding obligations under the Notes.
(b) Nothing contained in this Agreement shall require any Paying Agent to expend or risk their own funds or incur any liability in the performance of its duties or the exercise of any right, power, authority or discretion hereunder if they have justified grounds for believing that the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to them, in particular, the Paying Agents shall not be obliged (but shall be entitled) to make payments of principal or interest in respect of the Notes until they have received the full amount of any payment due to them under Clause 5.1.
(c) If any payment provided for in Clause 5.1(b) is made late but otherwise in accordance with the provisions of this Agreement, the Paying Agents shall nevertheless make payments in respect of the Notes as referred to in Clause 5.3(a) promptly following receipt by it of such payment.
(d) Gross-up of payments
(i) If the Issuer is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges as specifically contemplated in Condition 6, it shall give notice thereof to the Principal Paying Agent and the Portuguese Paying Agent as soon as it becomes aware of the requirement to make the withholding or deduction.
(ii) If any Paying Agent is compelled to withhold or deduct any amount in respect of the Notes for or on account of any taxes, duties, assessments or governmental charges as specifically contemplated under the Conditions, other than by virtue of the relevant Holders failing to satisfy any certification or other requirement in respect of its Notes, the Principal Paying Agent shall give notice of that fact to the Issuer as soon as it becomes aware of the requirement to withhold or deduct.
(e) The Paying Agents will not be responsible for making any deduction or withholding from any payment which they make under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by applicable law, which shall be made by each of the Affiliate Members of Interbolsa, in which event such Affiliate Member of Interbolsa shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted.
(f) If any Paying Agent makes any payment in accordance with Clause 5.3(a) it shall be entitled to appropriate for its own account out of the funds received by it under Clause 5.1(a) an amount equal to the amount so paid by it.
(g) Notwithstanding what is provided for in Clause 5.3(b), if any Paying Agent makes a payment in respect of the Notes on or after the due date for such payment under the Conditions at a time at which it has not received the full amount of the relevant payment due to it under Clause 5.1(a) and such Paying Agent is not able to be reimbursed by appropriation as described in Clause 5.3(f), then:
(i) the Paying Agent shall notify the Issuer and the Principal Paying Agent of the amount so paid by it and the Notes in relation to which payment of principal interest was made; and
(ii) subject to and to the extent of compliance by the Issuer with Clause 5.1(a) (whether or not at the due time), the Issuer shall reimburse such Paying Agent for (A) the amount so paid by it by payment out of the funds received by the Paying Agent or appropriated by it pursuant to Clause 5.3(f) and (B) interest on such amount from the date on which such Paying Agent made such payment until the date of reimbursement of such amount by paying the same by credit transfer to such account with such bank as the Paying Agent may by notice to the Issuer and the Principal Paying Agent have specified for the purpose, provided that any payment made under Clause 5.3(g)(ii)(A) shall satisfy pro tanto the Issuer’s obligations under Clause 5.1(a).
(iii) Interest shall accrue for the purpose of Clause 5.3(g)(ii) (before and after judgment) on the basis of a year of 360 days in the case of an amount paid in euro and the actual number of days elapsed and at the rate per annum which is the aggregate of one per cent. per annum and the rate per annum specified by the relevant Paying Agent as reflecting its cost of funds for the time being in relation to the unpaid amount (and the relevant Paying Agent may, upon request, provide such reasonable evidence of the interest, cost, loss or expense which it incurs).
(h) Except as ordered by a court of competent jurisdiction or required by law, the Paying Agents may deem and treat the person or entity registered in the Book Entry Registry as the holder of any Note and the absolute owner for all purposes (whether or not such Notes shall be overdue and notwithstanding any notice of ownership or otherwise). Proof of such registration is made by means of a certificate issued by the relevant Affiliate Member of Interbolsa pursuant to article 78 of the Portuguese Securities Code (“Código dos Valores Mobiliários”).
(i) Each Paying Agent shall be bound to fulfil all legal and regulatory obligations applicable to it, namely the obligations arising to Paying Agents from the Portuguese Securities Code, as amended and from the regulations issued by the CMVM and by Interbolsa, the obligations arising from this Agreement and pursuant to the Conditions.
Appears in 1 contract
Samples: Paying Agency Agreement
Payments to Holders. (a) The Portuguese Paying Agent or Parent shall make no payment with respect to the payment of Principal Amount, Issue Price, accrued Liquidated Damages, if any, accrued Original Issue Discount, Redemption Price, Purchase Price, Fundamental Change Redemption Price, interest and any other relevant Paying Agent from time to time shall make or cause to be amounts payable, if any, on the Securities, except payments and distributions made payments of interest orby the Trustee as permitted by Section 10A.05, as the case may be, principal in respect of the Notes in accordance with the Conditions, provided however thatif:
(i) by no earlier than 20 a default in any payment obligations in respect of Parent Senior Indebtedness occurs and no later than 16 days prior is continuing, without regard to any applicable period of grace (whether at maturity or at a date fixed for payment or by declaration or otherwise); or
(ii) any other default occurs and is continuing with respect to Designated Senior Indebtedness that permits the holders of such Designated Senior Indebtedness as to which such default relates to accelerate its maturity and the Trustee receives a Payment Blockage Notice from a holder of Designated Senior Indebtedness, or a Representative of Designated Senior Indebtedness. If the Trustee receives any Payment Blockage Notice pursuant to clause (ii) above, no subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and until at least 365 days shall have elapsed since the initial effectiveness of the immediately prior Payment Blockage Notice. No nonpayment default that existed or was continuing on which a payment (either the date of principal delivery of any Payment Blockage Notice to the Trustee shall be, or interest) is scheduled to be made, the Principal Paying Agent basis for a subsequent Payment Blockage Notice unless such default shall inform have been cured or waived for a period of not less than 90 days (it being acknowledged that (x) any action of Parent or any of its Subsidiaries occurring subsequent to delivery of a Payment Blockage Notice that would give rise to any event of default pursuant to any provision of Parent Senior Indebtedness under which an event of default previously existed (or was continuing at the Issuer that the relevant payment will fall due and which is the relevant amount (time of principal and/or interestdelivery of such Payment Blockage Notice) which will be due shall constitute a new event of default for this purpose and (y) any breach of a financial covenant giving rise to a nonpayment default for a period ending subsequent to the date of delivery of the respective Payment Blockage Notice shall constitute a new event of default for this purpose.) Parent may and shall resume payments on and distributions in respect of the Securities upon the earlier of:
(1) in case of a default referred to in clause (i) above, the date upon which the default is cured or waived in accordance with the terms of the governing instrument or ceases to exist, or
(2) in the case of a default referred to in clause (ii) above, the date upon which the default is cured, waived in accordance with the terms of the governing instrument or ceases to exist or 179 days pass after the applicable Payment Blockage Notice is received if any) the Interbolsa fees maturity of such Designated Senior Indebtedness has not been accelerated, unless this Article 10A otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by Parent or distribution of assets of Parent of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization or bankruptcy of Parent, whether voluntary or involuntary or insolvency, receivership or similar proceedings relating to Parent or its property, or an assignment for the benefit of creditors or any marshaling of Parent's assets or liabilities, all amounts due and payable by or to become due upon all Parent Senior Indebtedness shall first be paid in full in cash or other payment satisfactory to the Issuer holders of such Parent Senior Indebtedness before any payment is made on such date (which feesaccount of the Principal Amount, Issue Price, accrued Original Issue Discount, accrued Liquidated Damages, if any, Redemption Price, Purchase Price, Fundamental Change Redemption Price, interest or any other amounts payable, if any, in respect of the Portuguese Paying Agent Securities (except payments made pursuant to Article 8 hereof from monies deposited with the Trustee pursuant thereto prior to the happening of such dissolution or winding-up or liquidation or reorganization or bankruptcy of Parent, whether voluntary or involuntary or insolvency, receivership or similar proceedings relating to Parent or its property, or an assignment of the benefit of creditors or any marshaling of Parent's assets or liabilities), and upon any such dissolution or winding-up or liquidation or reorganization or bankruptcy of Company, whether voluntary or involuntary or insolvency, receivership or similar proceedings relating to Parent or its property, or an assignment of the benefit of creditors or any marshalling of Parent's assets or liabilities, any payment by Parent, or distribution of assets of Parent of any kind or character, whether in cash, property or securities, to which the Holders of the Securities or the Trustee would be entitled, except for the provisions of this Article 10A, shall inform the Principal Paying Agent (except as aforesaid) be paid by Parent or by any receiver, trustee in advance). Such information will be sent bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Principal Paying Agent Holders of the Securities or by the Trustee under this Indenture if received by them or it, directly to the Issuer by emailholders of Parent Senior Indebtedness as their interests may appear or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any such Parent Senior Indebtedness may have been issued, as their respective interests may appear to the extent necessary to pay all such Parent Senior Indebtedness in accordance with full in cash or other payment satisfactory to the notice details provided for in Clause 9.3;
(ii) by no later than 15 Business Days prior holders of such Senior Indebtedness, after giving effect to any date on which a concurrent payment (either or distribution to or for the holders of principal such Senior Indebtedness, before any payment or interest) distribution is scheduled to be made to the Holders (Information Date), the Issuer shall provide Interbolsa with a written notification, with a copy to the Paying Agents, stating that the relevant payment will be made and containing all necessary information for the purpose of carrying out such payment, including the identity of the relevant Paying Agent who shall make such payments on behalf of the Issuer;
(iii) no later than 5 Business Days following the Information Date, the Portuguese Paying Agent shall provide to Interbolsa a file setting out the relevant principal and interest amounts to be paid under the Notes. The Portuguese Paying Agent confirms that it will provide to Interbolsa the standard written irrevocable confirmation, in terms acceptable by Interbolsa, that it will comply with the functions of a paying agent in relation to payments under the Notes (either of principal or interest, as the case may be), for the life of the Notes (without prejudice to the actual payments to be made by the Portuguese Paying Agent under such functions being subject to the Principal Paying Agent receiving the relevant funds from the Issuer, as foreseen in this Agreement). The Portuguese Paying Agent shall provide the Issuer with a copy of each irrevocable confirmation provided to Interbolsa pursuant to this Clause 5.3(a)(iii); and
(iv) whilst the Notes are held through Interbolsa, payment of principal and interest in respect of the Notes will be (a) credited, on the relevant payment date and according to the applicable procedures and regulations, by the Portuguese Paying Agent (acting on behalf of the Issuer) to the payment current account held in the payment system of the TARGET2 by the Affiliate Member of Interbolsa whose control accounts are credited with such Notes and (b) thereafter credited by such Affiliate Member of Interbolsa from the aforementioned payment current accounts to the accounts of the Holders or through Euroclear and Clearstream, Luxembourg to the accounts with Euroclear and Clearstream, Luxembourg of the beneficial owners of those Notes, in accordance with the rules and procedures of Interbolsa, Euroclear or Clearstream, Luxembourg, as the case may be. Payments to the clearing system Securities or to its order shall, to the extent amounts so paid and provided the Notes are still held on behalf of the clearing system, constitute the discharge of the Issuer from its corresponding obligations under the Notes.
(b) Nothing contained in this Agreement shall require any Paying Agent to expend or risk their own funds or incur any liability in the performance of its duties or the exercise of any right, power, authority or discretion hereunder if they have justified grounds for believing that the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to them, in particular, the Paying Agents shall not be obliged (but shall be entitled) to make payments of principal or interest in respect of the Notes until they have received the full amount of any payment due to them under Clause 5.1.
(c) If any payment provided for in Clause 5.1(b) is made late but otherwise in accordance with the provisions of this Agreement, the Paying Agents shall nevertheless make payments in respect of the Notes as referred to in Clause 5.3(a) promptly following receipt by it of such payment.
(d) Gross-up of payments
(i) If the Issuer is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges as specifically contemplated in Condition 6, it shall give notice thereof to the Principal Paying Agent and the Portuguese Paying Agent as soon as it becomes aware of the requirement to make the withholding or deduction.
(ii) If any Paying Agent is compelled to withhold or deduct any amount in respect of the Notes for or on account of any taxes, duties, assessments or governmental charges as specifically contemplated under the Conditions, other than by virtue of the relevant Holders failing to satisfy any certification or other requirement in respect of its Notes, the Principal Paying Agent shall give notice of that fact to the Issuer as soon as it becomes aware of the requirement to withhold or deduct.
(e) The Paying Agents will not be responsible for making any deduction or withholding from any payment which they make under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by applicable law, which shall be made by each of the Affiliate Members of Interbolsa, in which event such Affiliate Member of Interbolsa shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted.
(f) If any Paying Agent makes any payment in accordance with Clause 5.3(a) it shall be entitled to appropriate for its own account out of the funds received by it under Clause 5.1(a) an amount equal to the amount so paid by it.
(g) Notwithstanding what is provided for in Clause 5.3(b), if any Paying Agent makes a payment in respect of the Notes on or after the due date for such payment under the Conditions at a time at which it has not received the full amount of the relevant payment due to it under Clause 5.1(a) and such Paying Agent is not able to be reimbursed by appropriation as described in Clause 5.3(f), then:
(i) the Paying Agent shall notify the Issuer and the Principal Paying Agent of the amount so paid by it and the Notes in relation to which payment of principal interest was made; and
(ii) subject to and to the extent of compliance by the Issuer with Clause 5.1(a) (whether or not at the due time), the Issuer shall reimburse such Paying Agent for (A) the amount so paid by it by payment out of the funds received by the Paying Agent or appropriated by it pursuant to Clause 5.3(f) and (B) interest on such amount from the date on which such Paying Agent made such payment until the date of reimbursement of such amount by paying the same by credit transfer to such account with such bank as the Paying Agent may by notice to the Issuer and the Principal Paying Agent have specified for the purpose, provided that any payment made under Clause 5.3(g)(ii)(A) shall satisfy pro tanto the Issuer’s obligations under Clause 5.1(a).
(iii) Interest shall accrue for the purpose of Clause 5.3(g)(ii) (before and after judgment) on the basis of a year of 360 days in the case of an amount paid in euro and the actual number of days elapsed and at the rate per annum which is the aggregate of one per cent. per annum and the rate per annum specified by the relevant Paying Agent as reflecting its cost of funds for the time being in relation to the unpaid amount (and the relevant Paying Agent may, upon request, provide such reasonable evidence of the interest, cost, loss or expense which it incurs).
(h) Except as ordered by a court of competent jurisdiction or required by law, the Paying Agents may deem and treat the person or entity registered in the Book Entry Registry as the holder of any Note and the absolute owner for all purposes (whether or not such Notes shall be overdue and notwithstanding any notice of ownership or otherwise). Proof of such registration is made by means of a certificate issued by the relevant Affiliate Member of Interbolsa pursuant to article 78 of the Portuguese Securities Code (“Código dos Valores Mobiliários”).
(i) Each Paying Agent shall be bound to fulfil all legal and regulatory obligations applicable to it, namely the obligations arising to Paying Agents from the Portuguese Securities Code, as amended and from the regulations issued by the CMVM and by Interbolsa, the obligations arising from this Agreement and pursuant to the Conditions.the
Appears in 1 contract
Samples: First Supplemental Indenture (Western Digital Corp)
Payments to Holders. Notwithstanding any provisions of this Indenture and the Notes to the contrary:
(a) The Portuguese Paying Agent or Except for any other relevant Paying Agent from time to time shall make or cause to be made payments of interest or, as the case may be, principal in respect of the Notes in accordance with the Conditions, provided however that:
(i) by no earlier than 20 and no later than 16 days prior to any date on which a payment (either of principal or interest) is scheduled to be made, the Principal Paying Agent shall inform the Issuer that the relevant payment will fall due and which is the relevant amount (of principal and/or interest) which will be due and (if any) the Interbolsa fees due and payable by the Issuer on such date (which fees, if any, the Portuguese Paying Agent shall inform the Principal Paying Agent in advance). Such information will be sent by the Principal Paying Agent to the Issuer by email, in accordance with the notice details provided for in Clause 9.3;
(ii) by no later than 15 Business Days prior to any date on which a payment (either of principal or interest) is scheduled to be made to the Holders (Information Date), the Issuer shall provide Interbolsa with a written notification, with a copy to the Paying Agents, stating that the relevant payment will be made and containing all necessary information for the purpose of carrying out such payment, including the identity of the relevant Paying Agent who shall make such payments on behalf of the Issuer;
(iii) no later than 5 Business Days following the Information Date, the Portuguese Paying Agent shall provide to Interbolsa a file setting out the relevant principal and interest amounts to be paid under the Notes. The Portuguese Paying Agent confirms that it will provide to Interbolsa the standard written irrevocable confirmation, in terms acceptable by Interbolsa, that it will comply with the functions of a paying agent in relation to payments under the Notes (either of principal or interest, as the case may be), for the life of the Notes (without prejudice to the actual payments to be made by on a Redemption Date or the Portuguese Paying Agent under such functions being subject Maturity Date, cash payments with respect to the Principal Paying Agent receiving the relevant funds from the Issuer, as foreseen in this Agreement). The Portuguese Paying Agent shall provide the Issuer with a copy of each irrevocable confirmation provided to Interbolsa pursuant to this Clause 5.3(a)(iii); and
(iv) whilst the Notes are held through Interbolsa, payment of principal and interest in respect any of the Notes will may be (a) creditedmade by the Paying Agent upon receipt from the Company of immediately available funds, on the relevant payment date and according by check mailed to the applicable procedures and regulationsHolder, at the address shown in the registrar of the Notes maintained by the Portuguese Paying Agent (acting on behalf of the Issuer) Registrar pursuant to the payment current account held in the payment system of the TARGET2 by the Affiliate Member of Interbolsa whose control accounts are credited with such Notes and (b) thereafter credited by such Affiliate Member of Interbolsa from the aforementioned payment current accounts to the accounts of the Holders or through Euroclear and Clearstream, Luxembourg to the accounts with Euroclear and Clearstream, Luxembourg of the beneficial owners of those Notes, in accordance with the rules and procedures of Interbolsa, Euroclear or Clearstream, Luxembourg, as the case may be. Payments to the clearing system or to its order shall, to the extent amounts so paid and provided the Notes are still held on behalf of the clearing system, constitute the discharge of the Issuer from its corresponding obligations under the Notes.Section 2.3 hereof; or
(b) Nothing contained At the request of a Holder of at least $5 million in this Agreement shall require aggregate principal amount of Notes outstanding, all cash payments with respect to any Paying Agent to expend or risk their own funds or incur any liability in the performance of its duties or the exercise of any right, power, authority or discretion hereunder if they have justified grounds for believing that the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to them, in particular, the Paying Agents shall not be obliged (but shall be entitled) to make payments of principal or interest in respect of the Notes until they have received the full amount of any payment due to them under Clause 5.1.
(c) If any payment provided for in Clause 5.1(b) is may be made late but otherwise in accordance with the provisions of this Agreement, by the Paying Agents Agent upon receipt from the Company of immediately available funds prior to 10:00 a.m., New York City time, directly to such Holder of such Note (whether by federal funds, wire transfer or otherwise); provided, however, that no such federal funds, wire transfer or other such direct payment shall nevertheless make be made to any Holder under this Section 2.15(b) unless such Holder has delivered written instructions to the Trustee prior to the relevant record date for such payment requesting that such payment will be so made and designating the bank account to which such payments shall be so made and, in respect the case of payments of principal, surrenders the Note to the Trustee in exchange for a Note or Notes aggregating the same principal amount as the unredeemed principal amount of the Notes as referred to in Clause 5.3(a) promptly following receipt by it of such payment.
(d) Gross-up of payments
(i) If the Issuer is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges as specifically contemplated in Condition 6, it shall give notice thereof to the Principal Paying Agent and the Portuguese Paying Agent as soon as it becomes aware of the requirement to make the withholding or deduction.
(ii) If any Paying Agent is compelled to withhold or deduct any amount in respect of the Notes for or on account of any taxes, duties, assessments or governmental charges as specifically contemplated under the Conditions, other than by virtue of the relevant Holders failing to satisfy any certification or other requirement in respect of its Notes, the Principal Paying Agent shall give notice of that fact to the Issuer as soon as it becomes aware of the requirement to withhold or deduct.
(e) surrendered. The Paying Agents will not be responsible for making any deduction or withholding from any payment which they make under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by applicable law, which Trustee shall be made entitled to rely on the last instruction delivered by each of the Affiliate Members of Interbolsa, in which event such Affiliate Member of Interbolsa shall make such payment after such withholding or deduction has been made and shall account Holder pursuant to this Section 2.15(b) unless a new instruction is delivered prior to the relevant authorities record date for a payment date. The Company will indemnify and hold the amount so withheld Trustee harmless against any loss, liability or deducted.
expense (fincluding attorneys’ fees and expenses) If resulting from any act or omission to act on the part of the Company or any such Holder in connection with any such agreement or which the Paying Agent makes may incur as a result of making any payment in accordance with Clause 5.3(aany such agreement. All payments made on a Redemption Date are subject to Section 2.8 and Article 3 hereof. No later than fifteen (15) it shall be entitled to appropriate for its own account out of the funds received by it under Clause 5.1(a) an amount equal days prior to the amount so paid by it.
(g) Notwithstanding what is provided for Maturity Date, the Trustee shall notify the Holder, at the address shown in Clause 5.3(b), if any Paying Agent makes a payment in respect the registrar of the Notes maintained by the Registrar pursuant to Section 2.3 hereof, that the Company expects that the final installment of principal of and interest on or after the due date for such payment under the Conditions at a time at which it has not received the full amount of the relevant payment due to it under Clause 5.1(a) and such Paying Agent is not able to be reimbursed by appropriation as described in Clause 5.3(f), then:
(i) the Paying Agent shall notify the Issuer and the Principal Paying Agent of the amount so paid by it and the Notes in relation to which will be paid on the Maturity Date. Such notice shall specify that such final installment will be payable only upon presentation and surrender of such Note and shall specify the place where such Notes may be presented and surrendered for payment of principal interest was made; and
(ii) subject to and to the extent of compliance by the Issuer such installment. Additionally, in accordance with Clause 5.1(a) (whether or not at the due time)Section 2.8, the Issuer shall reimburse such Paying Agent for (A) the amount so paid by it by payment out of the funds received by the Paying Agent or appropriated by it pursuant to Clause 5.3(f) and (B) interest on such amount from the date on which such Paying Agent made such payment until the date of reimbursement of such amount by paying the same by credit transfer to such account with such bank as the Paying Agent may by notice to the Issuer and the Principal Paying Agent have specified for the purpose, provided that any payment made under Clause 5.3(g)(ii)(A) shall satisfy pro tanto the Issuer’s obligations under Clause 5.1(a).
(iii) Interest shall accrue for the purpose of Clause 5.3(g)(ii) (before and after judgment) on the basis of a year of 360 days in the case of an amount paid in euro and the actual number of days elapsed and at the rate per annum which is the aggregate of one per cent. per annum and the rate per annum specified by the relevant Paying Agent as reflecting its cost of funds for the time being in relation to the unpaid amount (and the relevant Paying Agent may, upon request, provide such reasonable evidence of the interest, cost, loss or expense which it incurs).
(h) Except as ordered by a court of competent jurisdiction or required by law, the Paying Agents may deem and treat the person or entity registered in the Book Entry Registry as the holder of any Note and the absolute owner for all purposes (whether or not such Notes shall cease to be overdue and notwithstanding any notice of ownership or otherwise). Proof of such registration is made by means of a certificate issued by the relevant Affiliate Member of Interbolsa pursuant to article 78 of the Portuguese Securities Code (“Código dos Valores Mobiliários”)outstanding.
(i) Each Paying Agent shall be bound to fulfil all legal and regulatory obligations applicable to it, namely the obligations arising to Paying Agents from the Portuguese Securities Code, as amended and from the regulations issued by the CMVM and by Interbolsa, the obligations arising from this Agreement and pursuant to the Conditions.
Appears in 1 contract
Samples: Indenture (Federal Mogul Corp)
Payments to Holders. (a) The Portuguese Paying Agent or any other relevant Paying Agent from time to time shall make or cause to be made payments of interest or, as the case may be, principal in respect of the Notes in accordance with the Conditions, provided however that:
(i) by no earlier than 20 and no later than 16 days prior to any date on which a payment (either of principal or interest) is scheduled to be made, the Principal Paying Agent shall inform the Issuer that the relevant payment will fall due and which is the relevant amount (of principal and/or interest) which will be due and (if any) the Interbolsa fees due and payable by the Issuer on such date (which fees, if any, the Portuguese Paying Agent shall inform the Principal Paying Agent in advance). Such information will be sent by the Principal Paying Agent to the Issuer by email, in accordance with the notice details provided for in Clause 9.3;
(ii) by no later than 15 Business Days prior to any date on which a payment (either of principal or interest) is scheduled to be made to the Holders (Information Date), the Issuer shall provide Interbolsa with a written notification, with a copy to the Paying Agents, stating that the relevant payment will be made and containing all necessary information for the purpose of carrying out such payment, including the identity of the relevant Paying Agent who shall make such payments on behalf of the Issuer;
(iii) no later than 5 Business Days following the Information Date, the Portuguese Paying Agent shall provide to Interbolsa a file setting out the relevant principal and interest amounts to be paid under the Notes. (The Portuguese Paying Agent confirms that it will provide to Interbolsa the standard written irrevocable confirmation, in terms acceptable by Interbolsa, that it will comply with the functions of a paying agent in relation to payments under the Notes (either of principal or interest, as the case may be), for the life of the Notes (without prejudice to the actual payments to be made by the Portuguese Paying Agent under such functions being subject to the Principal Paying Agent receiving the relevant funds from the Issuer, as foreseen in this Agreement). The Portuguese Paying Agent shall provide the Issuer with a copy of each irrevocable confirmation provided to Interbolsa pursuant to this Clause 5.3(a)(iii); and
(iv) whilst the Notes are held through Interbolsa, payment of principal and interest in respect of the Notes will be (a) credited, on the relevant payment date and according to the applicable procedures and regulations, by the Portuguese Paying Agent (acting on behalf of the Issuer) to the payment current account held in the payment system of the TARGET2 by the Affiliate Member of Interbolsa Participants whose control accounts are credited with such Notes and (b) thereafter credited by such Affiliate Member of Interbolsa Participants from the aforementioned payment current accounts to the accounts of the Holders or through Euroclear and Clearstream, Luxembourg to the accounts with Euroclear and Clearstream, Luxembourg of the beneficial owners of those Notes, in accordance with the rules and procedures of Interbolsa, Euroclear or Clearstream, Luxembourg, as the case may be. Payments to the clearing system or to its order shall, to the extent amounts so paid and provided the Notes are still held on behalf of the clearing system, constitute the discharge of the Issuer from its corresponding obligations under the Notes.
(b) Nothing contained in this Agreement shall require any Paying Agent to expend or risk their own funds or incur any liability in the performance of its duties or the exercise of any right, power, authority or discretion hereunder if they have justified grounds for believing that the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to them, in particular, the Paying Agents shall not be obliged (but shall be entitled) to make payments of principal or interest in respect of the Notes until they have received the full amount of any payment due to them under Clause 5.1.
(c) If any payment provided for in Clause 5.1(b) is made late but otherwise in accordance with the provisions of this Agreement, the Paying Agents shall nevertheless make payments in respect of the Notes as referred to in Clause 5.3(a) promptly following receipt by it of such payment.
(d) Gross-up of payments
(i) If the Issuer is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges as specifically contemplated in Condition 6, it shall give notice thereof to the Principal Paying Agent and the Portuguese Paying Agent as soon as it becomes aware of the requirement to make the withholding or deduction.
(ii) If any Paying Agent is compelled to withhold or deduct any amount in respect of the Notes for or on account of any taxes, duties, assessments or governmental charges as specifically contemplated under the Conditions, other than by virtue of the relevant Holders failing to satisfy any certification or other requirement in respect of its Notes, the Principal Paying Agent shall give notice of that fact to the Issuer as soon as it becomes aware of the requirement to withhold or deduct.
(e) The Paying Agents will not be responsible for making any deduction or withholding from any payment which they make under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by applicable law, which shall be made by each of the Affiliate Members of InterbolsaInterbolsa Participants, in which event such Affiliate Member of Interbolsa Participant shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted.
(f) If any Paying Agent makes any payment in accordance with Clause 5.3(a) it shall be entitled to appropriate for its own account out of the funds received by it under Clause 5.1(a) an amount equal to the amount so paid by it.
(g) Notwithstanding what is provided for in Clause 5.3(b), if any Paying Agent makes a payment in respect of the Notes on or after the due date for such payment under the Conditions at a time at which it has not received the full amount of the relevant payment due to it under Clause 5.1(a) and such Paying Agent is not able to be reimbursed by appropriation as described in Clause 5.3(f), then:
(i) the Paying Agent shall notify the Issuer and the Principal Paying Agent of the amount so paid by it and the Notes in relation to which payment of principal interest was made; and
(ii) subject to and to the extent of compliance by the Issuer with Clause 5.1(a) (whether or not at the due time), the Issuer shall reimburse such Paying Agent for (A) the amount so paid by it by payment out of the funds received by the Paying Agent or appropriated by it pursuant to Clause 5.3(f) and (B) interest on such amount from the date on which such Paying Agent made such payment until the date of reimbursement of such amount by paying the same by credit transfer to such account with such bank as the Paying Agent may by notice to the Issuer and the Principal Paying Agent have specified for the purpose, provided that any payment made under Clause 5.3(g)(ii)(A) shall satisfy pro tanto the Issuer’s obligations under Clause 5.1(a).
(iii) Interest shall accrue for the purpose of Clause 5.3(g)(ii) (before and after judgment) on the basis of a year of 360 days in the case of an amount paid in euro and the actual number of days elapsed and at the rate per annum which is the aggregate of one per cent. per annum and the rate per annum specified by the relevant Paying Agent as reflecting its cost of funds for the time being in relation to the unpaid amount (and the relevant Paying Agent may, upon request, provide such reasonable evidence of the interest, cost, loss or expense which it incurs).
(h) Except as ordered by a court of competent jurisdiction or required by law, the Paying Agents may deem and treat the person or entity registered in the Book Entry Registry as the holder of any Note and the absolute owner for all purposes (whether or not such Notes shall be overdue and notwithstanding any notice of ownership or otherwise). Proof of such registration is made by means of a certificate issued by the relevant Affiliate Member of Interbolsa Participant pursuant to article 78 of the Portuguese Securities Code (“Código dos Valores Mobiliários”).
(i) Each Paying Agent shall be bound to fulfil all legal and regulatory obligations applicable to it, namely the obligations arising to Paying Agents from the Portuguese Securities Code, as amended and from the regulations issued by the CMVM and by Interbolsa, the obligations arising from this Agreement and pursuant to the Conditions.
Appears in 1 contract
Samples: Paying Agency Agreement
Payments to Holders. Notwithstanding any provisions of this Indenture and the Senior Notes to the contrary:
(a) The Portuguese Paying Agent or Except for any other relevant Paying Agent from time to time shall make or cause to be made payments of interest or, as the case may be, principal in respect of the Notes in accordance with the Conditions, provided however that:
(i) by no earlier than 20 and no later than 16 days prior to any date on which a payment (either of principal or interest) is scheduled to be made, the Principal Paying Agent shall inform the Issuer that the relevant payment will fall due and which is the relevant amount (of principal and/or interest) which will be due and (if any) the Interbolsa fees due and payable by the Issuer on such date (which fees, if any, the Portuguese Paying Agent shall inform the Principal Paying Agent in advance). Such information will be sent by the Principal Paying Agent to the Issuer by email, in accordance with the notice details provided for in Clause 9.3;
(ii) by no later than 15 Business Days prior to any date on which a payment (either of principal or interest) is scheduled to be made to the Holders (Information Date), the Issuer shall provide Interbolsa with a written notification, with a copy to the Paying Agents, stating that the relevant payment will be made and containing all necessary information for the purpose of carrying out such payment, including the identity of the relevant Paying Agent who shall make such payments on behalf of the Issuer;
(iii) no later than 5 Business Days following the Information Date, the Portuguese Paying Agent shall provide to Interbolsa a file setting out the relevant principal and interest amounts to be paid under the Notes. The Portuguese Paying Agent confirms that it will provide to Interbolsa the standard written irrevocable confirmation, in terms acceptable by Interbolsa, that it will comply with the functions of a paying agent in relation to payments under the Notes (either of principal or interest, as the case may be), for the life of the Notes (without prejudice to the actual payments to be made on a Redemption Date or the Maturity Date, payments with respect to any of the Senior Notes may be made by the Portuguese Paying Agent under such functions being subject upon receipt from the Company of immediately available funds, by check mailed to the Principal Paying Agent receiving Holder, at the relevant funds from address shown in the Issuer, as foreseen in this Agreement). The Portuguese Paying Agent shall provide registrar of the Issuer with a copy of each irrevocable confirmation provided to Interbolsa Senior Notes maintained by the Registrar pursuant to this Clause 5.3(a)(iii)Section 2.3 hereof; and
(iv) whilst the Notes are held through Interbolsa, payment of principal and interest in respect of the Notes will be (a) credited, on the relevant payment date and according to the applicable procedures and regulations, by the Portuguese Paying Agent (acting on behalf of the Issuer) to the payment current account held in the payment system of the TARGET2 by the Affiliate Member of Interbolsa whose control accounts are credited with such Notes and (b) thereafter credited by such Affiliate Member of Interbolsa from the aforementioned payment current accounts to the accounts of the Holders or through Euroclear and Clearstream, Luxembourg to the accounts with Euroclear and Clearstream, Luxembourg of the beneficial owners of those Notes, in accordance with the rules and procedures of Interbolsa, Euroclear or Clearstream, Luxembourg, as the case may be. Payments to the clearing system or to its order shall, to the extent amounts so paid and provided the Notes are still held on behalf of the clearing system, constitute the discharge of the Issuer from its corresponding obligations under the Notes.or
(b) Nothing contained in this Agreement shall require At the request of a Holder, all payments with respect to any of the Senior Notes, may be made by the Paying Agent upon receipt from the Company of immediately available funds prior to expend or risk their own funds or incur any liability in 10:00 a.m., New York City time, directly to the performance of its duties or the exercise of any right, power, authority or discretion hereunder if they have justified grounds for believing that the repayment Holder of such funds Senior Note (whether by federal funds, wire transfer or adequate indemnity againstotherwise), or security forprovided, however, that no such risk or liability is not reasonably assured to themfederal funds, in particular, the Paying Agents shall not be obliged (but shall be entitled) to make payments of principal or interest in respect of the Notes until they have received the full amount of any payment due to them under Clause 5.1.
(c) If any payment provided for in Clause 5.1(b) is made late but otherwise in accordance with the provisions of this Agreement, the Paying Agents shall nevertheless make payments in respect of the Notes as referred to in Clause 5.3(a) promptly following receipt by it of such payment.
(d) Gross-up of payments
(i) If the Issuer is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges as specifically contemplated in Condition 6, it shall give notice thereof to the Principal Paying Agent and the Portuguese Paying Agent as soon as it becomes aware of the requirement to make the withholding or deduction.
(ii) If any Paying Agent is compelled to withhold or deduct any amount in respect of the Notes for or on account of any taxes, duties, assessments or governmental charges as specifically contemplated under the Conditions, other than by virtue of the relevant Holders failing to satisfy any certification wire transfer or other requirement in respect of its Notes, the Principal Paying Agent shall give notice of that fact to the Issuer as soon as it becomes aware of the requirement to withhold or deduct.
(e) The Paying Agents will not be responsible for making any deduction or withholding from any such direct payment which they make under this Agreement for or on account of any present or future taxes, duties or charges if and to the extent so required by applicable law, which shall be made by each of to any Holder under this Section 2.14(b) unless such Holder has delivered written instructions to the Affiliate Members of Interbolsa, in which event such Affiliate Member of Interbolsa shall make such payment after such withholding or deduction has been made and shall account Trustee prior to the relevant authorities record date for such payment requesting that such payment will be so made and designating the bank account to which such payments shall be so made and in the case of payments of principal, surrenders the Senior Note to the Trustee in exchange for a Senior Note or Senior Notes aggregating the same principal amount so withheld as the unredeemed principal amount of the Senior Notes surrendered. The Trustee shall be entitled to rely on the last instruction delivered by the Holder pursuant to this Section 2.14(b) unless a new instruction is delivered prior to the relevant record date for a payment date. The Company will indemnify and hold the Trustee harmless against any loss, liability or deducted.
expense (fincluding attorneys' fees and expenses) If resulting from any act or omission to act on the part of the Company or any such Holder in connection with any such agreement or which the Paying Agent makes may incur as a result of making any payment in accordance with Clause 5.3(aany such agreement. All payments made on a Redemption Date are subject to Section 2.8 and Article 3 hereof. No later than fifteen (15) it shall be entitled to appropriate for its own account out of the funds received by it under Clause 5.1(a) an amount equal days prior to the amount so paid by it.
(g) Notwithstanding what is provided for in Clause 5.3(b)Maturity Date, if any Paying Agent makes a payment in respect of the Notes on or after the due date for such payment under the Conditions at a time at which it has not received the full amount of the relevant payment due to it under Clause 5.1(a) and such Paying Agent is not able to be reimbursed by appropriation as described in Clause 5.3(f), then:
(i) the Paying Agent Trustee shall notify the Issuer and Holder, at the Principal Paying Agent address shown in the registrar of the amount so Senior Notes maintained by the Registrar pursuant to Section 2.3 hereof, that the Company expects that the final installment of principal of and interest on the Senior Notes will be paid by it on the Maturity Date. Such notice shall specify that such final installment will be payable only upon presentation and surrender of such Senior Note and shall specify the place where such Senior Notes in relation to which may be presented and surrendered for payment of principal interest was made; and
(ii) subject to and to the extent of compliance by the Issuer such installment. Additionally, in accordance with Clause 5.1(a) (whether or not at the due time)Section 2.8, the Issuer shall reimburse such Paying Agent for (A) the amount so paid by it by payment out of the funds received by the Paying Agent or appropriated by it pursuant to Clause 5.3(f) and (B) interest on such amount from the date on which such Paying Agent made such payment until the date of reimbursement of such amount by paying the same by credit transfer to such account with such bank as the Paying Agent may by notice to the Issuer and the Principal Paying Agent have specified for the purpose, provided that any payment made under Clause 5.3(g)(ii)(A) shall satisfy pro tanto the Issuer’s obligations under Clause 5.1(a).
(iii) Interest shall accrue for the purpose of Clause 5.3(g)(ii) (before and after judgment) on the basis of a year of 360 days in the case of an amount paid in euro and the actual number of days elapsed and at the rate per annum which is the aggregate of one per cent. per annum and the rate per annum specified by the relevant Paying Agent as reflecting its cost of funds for the time being in relation to the unpaid amount (and the relevant Paying Agent may, upon request, provide such reasonable evidence of the interest, cost, loss or expense which it incurs).
(h) Except as ordered by a court of competent jurisdiction or required by law, the Paying Agents may deem and treat the person or entity registered in the Book Entry Registry as the holder of any Note and the absolute owner for all purposes (whether or not such Senior Notes shall cease to be overdue and notwithstanding any notice of ownership or otherwise). Proof of such registration is made by means of a certificate issued by the relevant Affiliate Member of Interbolsa pursuant to article 78 of the Portuguese Securities Code (“Código dos Valores Mobiliários”)outstanding.
(i) Each Paying Agent shall be bound to fulfil all legal and regulatory obligations applicable to it, namely the obligations arising to Paying Agents from the Portuguese Securities Code, as amended and from the regulations issued by the CMVM and by Interbolsa, the obligations arising from this Agreement and pursuant to the Conditions.
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Samples: Indenture (Raintree Healthcare Corp)
