Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities: (a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, as and when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or (c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or (d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or (e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or (f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or (g) the entry by a court having competent jurisdiction of: (i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or (h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or (i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 4 contracts
Samples: Senior Indenture (Markel Corp), Senior Indenture (ALTERRA CAPITAL HOLDINGS LTD), Subordinated Indenture (Alterra Finance LLC)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of any installment of interest and Liquidated Damages, if any, upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturity, upon redemption (for any sinking fund payment or otherwise)maturity, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or[INTENTIONALLY DELETED]
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors. Then, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waivedcase, unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series Securities, the interest and Liquidated Damages, if any, accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interestinterest and Liquidated Damages, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest and Liquidated Damages, if any, upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interestinterest and Liquidated Damages, if any, at the same rate borne by as the Securities rate of such Series (or, interest specified in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein--then and in every such case the Holders holders of at least a majority in the aggregate principal amount at Maturity of the Securities of such Series then Outstandingoutstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 3 contracts
Samples: First Supplemental Indenture (Weirton Steel Corp), First Supplemental Indenture (Weirton Steel Corp), First Supplemental Indenture (Weirton Steel Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, as and when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 10,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 10,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given given, by registered or certified mail, to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4hereunder; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,00010,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of or any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture the Supplemental Indenture or resolution of the Board Resolution of Directors under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 3 contracts
Samples: Subordinated Indenture (Max USA Holdings Ltd.), Senior Indenture (Max USA Holdings Ltd.), Indenture (Max Re Capital LTD)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case “Event of Default”, with respect to Securities of a particular series, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest or any amounts payable pursuant to Section 3.1(b) upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 thirty days; , or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series when such principal or premium becomes or such Additional Amounts and as the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; otherwise or default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series, or
(c) failure on default in the part performance or breach of any covenant of the Company or the Guarantor, as the case may be, duly to observe or perform any other in respect of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, series (other than a covenant in respect of the Securities of such series a default in whose performance or whose breach is elsewhere in this Indenture contained Section specifically dealt with), and relating to continuance of such Series, default or breach for a period of 60 sixty days after there has been given, by registered or certified mail, to the date on which Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities, of each series affected thereby, or, in the case of a default with respect to all series of Securities, by the Holders of at least 25% in principal amount of all of the Outstanding Securities a written notice specifying such failure default or breach and requiring the Company or the Guarantor, as the case may be, it to remedy the same be remedied and stating that such notice is a “Notice of Default” hereunder hereunder, provided, however, that subject to the provisions of Section 6.1 the Trustee shall not be deemed to have knowledge of such default unless (a) the Trustee shall have been given to actual knowledge of such default or (b) the Trustee shall have received written notice thereof from the Company or the Guarantorfrom any Holder, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company or any event Significant Subsidiary bankrupt or insolvent, or (other than under or in connection with a scheme of amalgamation or reconstruction not involving bankruptcy or insolvency) approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or any Significant Subsidiary under any applicable law of the United States of America or the United Kingdom, or appointing a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Significant Subsidiary or of any substantial part of the property of the Company or any Significant Subsidiary, or (other than under or in connection with a scheme of amalgamation or reconstruction not involving bankruptcy or insolvency) ordering the winding up or liquidation of the Company’s or any Significant Subsidiary’s affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty consecutive days; or
(e) the institution by the Company or any Significant Subsidiary of proceedings to be adjudicated a bankrupt or insolvent or the consent by the Company or any Significant Subsidiary to the institution of bankruptcy or insolvency proceedings against the Company or such Significant Subsidiary or (other than under or in connection with a scheme of amalgamation or reconstruction not involving bankruptcy or insolvency) the passing of a resolution that the Company or any Significant Subsidiary be wound up or the filing of a petition or answer or consent seeking reorganization or relief under any applicable bankruptcy, insolvency or similar law of the United States of America or the United Kingdom, or the consent by the Company or any Significant Subsidiary to the filing of such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or of any substantial part of the property of the Company or any Significant Subsidiary, or the making by the Company of any Significant Subsidiary of an assignment for the benefit of creditors, or the admission by the Company or any Significant Subsidiary in writing of its inability to pay its debts generally as they become due, or (other than under or in connection with a scheme of amalgamation or reconstruction not involving bankruptcy or insolvency) the taking of action by the Board of Directors of the Company or by the analogous body of any Significant Subsidiary authorizing or directing any such action;
(f) default as defined in by the Company or any of its Significant Subsidiaries under any mortgage, indenture or instrument under which there may be issued, issued or by which there may be secured or evidenced, evidenced any Indebtedness of indebtedness for money borrowed by the Company, the Guarantor Company or any of its Designated Significant Subsidiaries (includingor the payment of which is guaranteed by the Company or any of its Significant Subsidiaries), other than indebtedness owed to the Company or a Significant Subsidiary, whether such indebtedness or guarantee now exists or is created after the date of this Indenture, which default:
(1) is caused by a failure to pay principal of, or interest or premium, if any, on such indebtedness prior to the expiration of any applicable grace period (and in any event not less than 15 days from the original due date for payment thereof) provided in such indebtedness or, in the case of any such indebtedness of a third party guaranteed by the Company or any of its Significant Subsidiaries, is caused by a failure of the Company or such Significant Subsidiary, as the case may be, to make any payment due in respect of such guarantee prior the expiration of any applicable grace period (and in any event not less than 15 days from the original due date for payment thereof) (“payment default”), unless, in any of the above cases, in the opinion of the Trustee, the Company or the relevant Significant Subsidiary, as the case may be, is contesting in good faith and by appropriate proceedings that such amounts are due; or
(2) results in the acceleration of such indebtedness prior to its maturity, other than any such indebtedness of any Person which becomes a Significant Subsidiary following its acquisition by the Company or any Subsidiary of the Company and which indebtedness of such Person is accelerated as a result of events or circumstances directly related to such acquisition and which accelerated indebtedness of such Person is discharged in full by or on behalf of the Company or the relevant Significant Subsidiary within 5 days after the acceleration thereof; and, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of any such Indebtedness at indebtedness, together with the principal amount of any other such indebtedness under which there has been a payment default or the maturity thereof (after giving effect of which has been so accelerated, aggregates to any applicable grace period) or shall result in such Indebtedness in principal an amount in excess of $30,000,000 becoming or being declared due and payable prior at least equal to the date on which it would otherwise become due greater of (i) 1% of Consolidated Net Worth and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company (ii) $50,000,000 (or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guaranteeforeign currency equivalent thereof); or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any the supplemental indenture or in or pursuant to resolutions of the Board Resolution of Directors of the Company under which such Series series of Securities is issued or in the form of Security for of such Series; series. If an Event of Default described in clause (a), (b), (c) (if the Event of Default under clause (c) is with respect to less than all series of Securities then Outstanding), (f) or (g) above occurs and is continuing with respect to a series of Securities, then, and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waivedcase, unless the principal of all of the Securities of such Series series shall have already become due and payable, either the Trustee for such Series or in its discretion may, and if so requested by the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series series then Outstanding hereunderhereunder (voting as a separate class) shall, by notice in writing to the Company, declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all the Securities of such series and the interest (including additional amounts payable under Section 3.1(b)) accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. If an Event of Default described in clause (c) (if the Event of Default under clause (c) is with respect to all series of Securities then Outstanding), (d) or (e) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, the Trustee in its discretion may, and if so requested by the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (voting as one class) shall, by notice in writing to the Company (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of if any Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of all the Securities of such Series then Outstanding and interest (including additional amounts payable under Section 3.1(b)) accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest (including additional amounts payable under Section 3.1(b)) upon all the Securities of such Series series (or of all the Securities, as the case may be) and the principal of any and all Securities of such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by the Securities of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of such series (or at the yield respective rates of interest or Yields to Maturity) Maturity of all the Securities, as the case may be, to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults under this IndentureEvents of Default with respect to the Securities of that Series, other than the nonpayment non payment of the principal of Securities of such Series that series which shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of such Series series, voting as a separate class (or of all the Securities, as, the case may be, voting as a single class) then Outstanding, by written notice to the Company, Company and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the Principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, (including additional amounts payable under Section 3.1(b)), if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 3 contracts
Samples: Indenture (Hanson PLC), Indenture (Hanson PLC), Indenture (Hanson PLC)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events events ("EVENTS OF DEFAULT") (whatever the reason for such Event of Default (unless and whether it is either inapplicable shall be voluntary or involuntary or be effected by operation of law or pursuant to a particular Series any judgment, decree or it is specifically deleted from order of any court or modified in the instrument establishing such Series and the form any order, rule or regulation of Security for such Seriesany administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 three days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwisepayable; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such Series, or in this Indenture contained and relating to such Series, Notes for a period of 60 15 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” "NOTICE OF DEFAULT" hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Issuer; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness acceleration of the Company, maturity of any Debt of the Guarantor Issuer or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more subsidiaries having a principal amount greater than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.41,000,000; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured a final and non-appealable judgment or court order (not covered by insurance) for the payment of money shall be rendered against the Issuer or any of its subsidiaries in excess of $30,000,0001,000,000 in the aggregate for all such judgments or orders (treating any deductibles, which is self insurance or retention as not stayed on appeal so covered), and such judgment or is not otherwise being appropriately contested in good faithorder shall continue unsatisfied for a period of 60 days; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of the property of the Issuer or ordering the winding up or liquidation of the affairs of the Issuer, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iig) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the CompanyIssuer, or the Guarantor or Issuer shall make any general assignment for the benefit of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiariescreditors; or
(h) the commencement consummation of the consolidation or merger of the Issuer into or with any other entity or entities which results in the exchange of outstanding shares of the Issuer for securities or other consideration issued or paid or caused to be issued or paid by the Company, the Guarantor any such entity or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization Affiliate thereof (other than (x) a reorganization under merger solely for the purpose of reincorporating the Issuer in a foreign law that does not relate different jurisdiction or (y) a consolidation or merger in which the Issuer is the surviving entity and in which the Issuer's Capital Stock outstanding immediately prior to insolvencysuch merger or consolidation are exchanged or converted into or constitute more than 50% of the Issuer's voting power after such consolidation or merger); (ii) the sale or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent transfer by the Company, the Guarantor Issuer of all or any substantially all of its Designated Subsidiaries assets otherwise than to the entry one or more Subsidiaries; or (iii) a transaction or series of transactions in which a decree person or order for relief group of persons (as defined in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition Rule 13d-5(b)1) of the CompanyExchange Act), the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official acquires beneficial ownership (as determined in accordance with Rule 13d-3 of the Company, the Guarantor or any Exchange Act) of its Designated Subsidiaries of any substantial part more than 50% of the property voting power of the CompanyIssuer; then, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) abovespecified in Sections 4.1(f), so long as such Event of Default with respect to such Series shall not have been remedied 4.1(g) or waived4.1(h) hereof), unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% at least a majority in aggregate principal amount at Maturity of the Securities of such Series Notes then Outstanding hereunderoutstanding, by notice in writing to the Company Issuer (and to the Trustee if given by such Holders"ACCELERATION NOTICE"), may declare the principal (or, in the case of Original Issue Discount Securities, such entire principal amount as may be determined in accordance with of the terms thereof) of all Notes and the Securities of such Series interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to ; PROVIDED that if an Event of Default described under clauses (gspecified in Section 4.1(f), 4.1(g) and (hor 4.1(h) aboveoccurs, the principal amount of all Securities of such Series and accrued interest on the Notes shall become and be immediately due and payable without any declaration or other act by on the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal part of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonHolder.
Appears in 3 contracts
Samples: Subordinated Convertible Note (Frontstep Inc), Securities Purchase Agreement (Frontstep Inc), Subordinated Convertible Note (Frontstep Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Except as otherwise provided with respect to the Securities of any series as contemplated by Section 2.3, "Event of Default" with respect to Securities of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series or in this Indenture contained and relating to (other than a covenant or warranty in respect of the Securities of such Series, series a default in the performance or breach of which is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, or by overnight courier or by hand delivery in each case with evidence of the receipt of such overnight courier or hand delivery by the Issuer, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4all series affected thereby; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(ig) any other Event of Default provided in any the supplemental indenture or indenture, Board Resolution under which or Officer's Certificate establishing the terms of such Series series of Securities is issued or in the form of Security for such Series; series. Except as otherwise provided with respect to the Securities of any series as contemplated by Section 2.3, if an Event of Default described in clauses (a), (b), (c), (d) or (g) (if the Event of Default under clause (d) or (g), as the case may be, is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series series then Outstanding hereunder, hereunder (such series voting as a separate class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. Except as otherwise provided with respect to the Securities of any series as contemplated by Section 2.3, if an Event of Default described in clause (d) or (g) (if the Event of Default under clause (d) or (g), as the case may be, is with respect to all series of Securities then Outstanding), clause (e) or (f) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of such Series then Outstanding, and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in . Except as otherwise provided with respect to the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) aboveany series as contemplated by Section 2.3, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionforegoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series series (or of all the Securities, as the case may be) and the principal of any and all Securities of such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of such series (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults under this IndentureEvents of Default with respect to the Securities of such series (or with respect to all of the Securities, as the case may be), other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein -- then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of such Series series, each series voting as a separate class, (or of all the Securities, as the case may be, voting as a single class) then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 2 contracts
Samples: Subordinated Debt Indenture (Kaufman & Broad Home Corp), Senior Debt Indenture (Kaufman & Broad Home Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case “Event of Default,” with respect to Securities of any series wherever used herein, means each one or more of the following Events events which shall have occurred and be continuing (whatever the reason for such Event of Default (and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) unless it is either inapplicable to a particular Series series or it is specifically deleted from or modified in the instrument establishing an indenture supplemental hereto, if any, under which such Series and the form series of Security for such Series) shall have occurred and be continuing with respect to any Series of SecuritiesSecurities is issued:
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 daysdays and the interest payment date has not been properly extended or deferred; orprovided, however, that if the Issuer and the Guarantor are permitted or required by the terms of the Securities of the applicable series to defer the payment in question, the date on which such payment is due and payable shall be the date on which the Issuer and the Guarantor is required to make payment following such deferral, if such deferral has been elected or required pursuant to the terms of the Securities of that series;
(b) default in the payment of the principal of all or any premium part of the Principal on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; orprovided, however, that if the Issuer and the Guarantor is permitted or required by the terms of the Securities of the applicable series to defer the payment in question, the date on which such payment is due and payable shall be the date on which the Issuer and the Guarantor are required to make payment following such deferral, if such deferral has been elected or required pursuant to the terms of the Securities of that series;
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series;
(d) failure on the part of the Company Issuer or the Guarantor, as the case may be, Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company Issuer or the Guarantor in this IndentureGuarantor, as the case may beapplicable, in the Securities of such Series, series (other than a covenant or agreement in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Section specifically dealt with) or contained in this Indenture contained and relating to (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such Series, series) for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder and demanding that the Issuer or the Guarantor remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or Issuer and the Guarantor, as the case may be, Guarantor by the Trustee for the Securities of such SeriesTrustee, or to the CompanyIssuer, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series at the time Outstanding in accordance with Section 11.4; orseries;
(de) if a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Issuer or the Guarantor as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Issuer or the Guarantor under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, and such decree or order shall have continued undischarged and unstayed for a period of 90 days; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Issuer or the Guarantor or of its respective property, or for the winding up or liquidation of its respective affairs, shall have been entered, and such decree or order shall have remained in force and unstayed for a period of 90 days;
(f) the Issuer or the Guarantor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or the Guarantor or for any substantial part of its respective property, or make any general assignment for the benefit of creditors, or shall admit in writing its inability to pay its respective debts generally as they become due;
(g) an event of default default, as defined in any mortgageone or more mortgages, indenture indentures, instruments, bonds, debentures, notes or instrument other similar instruments under which there may be issued, or by which there may be secured or evidenced, any Indebtedness indebtedness (other than the Securities of such series or nonrecourse obligations) (“Specified Indebtedness” ) in the Companyaggregate principal amount in excess of $100,000,000 for money borrowed by the Issuer, the Guarantor or any of its Designated the Significant Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof occur (after giving effect to any applicable grace period) or ), if such event of default shall result in the acceleration of such Specified Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and its expressed maturity unless such default shall not be cured Specified Indebtedness is discharged or such acceleration shall not be is cured, waived, rescinded or annulled within a period of 30 days after there written notice thereof shall have been given by registered or certified mail, return receipt requested, to the Company and the Guarantor Issuer by the Trustee or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written series which notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating shall state that such notice it is a “Notice of Default” hereunder in accordance with Section 11.4; orhereunder;
(eh) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money other than as expressly permitted in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason ceases to be in full force and effect with respect to any Outstanding Securities of such series or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries is declared to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries null and such decree or order shall remain unstayed void and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such actionunenforceable; or
(i) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Seriesseries; provided that if any such default shall cease or be cured, waived, rescinded or annulled, then and in each and every such case the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon cured. If an Event of Default (other than an Event of Default under clause (ge) and or (hf) above), so long as such Event of Default ) occurs and is continuing with respect to any series of Securities then Outstanding, then, and in each and every such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payablecase, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series then Outstanding hereunder, series by notice in writing to the Company Issuer and the Guarantor (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration declaration, the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable. If an Event of Default specified in clause (e) or (f) occurs, all unpaid principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding, and interest accrued thereon, if any, shall be due and payable immediately, without any declaration or other act by on the part of the Trustee or the Holdersany Securityholder. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe monies due shall have been obtained or entered as hereinafter provided, the Company Issuer or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series series and the principal of any and all Securities of each such Series series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, at ) specified in the yield to Maturity) Securities of such series to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation all amounts due to the Trustee, its agentsincluding reasonable compensation, attorneys expenses, disbursements and counsel and all other expenses and liabilities incurred, and all advances made, by of the Trustee, its agentsagents and counsel, attorneys and counsel and if any and all defaults Events of Default under this Indenturethe Indenture with respect to such series of Securities, other than the nonpayment of the principal of such Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate of the principal amount at Maturity of the Outstanding Securities of such Series series then Outstanding, by written notice to the Company, Issuer and the Guarantor and to the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to each such series and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 2 contracts
Samples: Senior Indenture (Enstar Finance LLC), Senior Indenture (Enstar Finance LLC)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Seriesprincipal of, or premium, if any, on, the Securities when due at maturity, upon repurchase, upon acceleration or otherwise, including, without limitation, failure of the Issuer to repurchase the Securities on the date required pursuant to Section 3.7 or 3.12 and failure to make any Additional Amounts payable with respect thereto, as and optional redemption payment when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 daysdue; or
(b) default in the payment of any installment of interest or Liquidated Damages on the principal of or Securities when due (including any premium on interest payable in connection with any Security optional redemption payment) and continuance of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (default for any sinking fund payment or otherwise), by declaration or otherwisemore than 30 days; or
(c) failure on the part Issuer fails to observe, perform or comply with any of the Company provisions described under Section 3.8, 3.12 or 9.1; or
(d) default (other than a default set forth in clauses (a), (b) and (c) above) in the Guarantorperformance of, as the case may beor breach of, duly to observe or perform any other covenant or warranty of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or Issuer in this Indenture contained or the Securities and relating failure to remedy such Series, for default or breach within a period of 60 30 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such Series, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of then outstanding Securities, each such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged breach and stating that such notice is a “"Notice of Default” hereunder in accordance with Section 11.4" hereunder; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 2 contracts
Samples: Indenture (Congoleum Corp), Indenture (American Biltrite Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case “Event of Default” with respect to Securities of any series, wherever used herein, means any one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; provided, that, a valid extension of an interest payment period by the Issuer in accordance with the terms of such Securities shall not constitute a failure to pay interest; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series or contained in this Indenture contained and relating to (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such Series, series) for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of the series to which such Series, a written notice specifying such event of default and requiring the Company covenant or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4agreement relates; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the CompanyIssuer, the General Partner or the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer, the General Partner or the Guarantor for any substantial part of its or their respective property or ordering the winding up or liquidation of its or their affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) a decree or order adjudging the CompanyIssuer, the General Partner or the Guarantor shall commence a voluntary case under any applicable bankruptcy, insolvency or any of its Designated Subsidiaries to be insolventother similar law now or hereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the CompanyIssuer, the General Partner or the Guarantor or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor its or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against ittheir property, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(ig) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Series; then series. If an Event of Default described in clause (a), (b) or (c) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of each such Series affected series then Outstanding hereunder, hereunder (each such series voting as a separate class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration declaration, the same shall become and shall be immediately due and payable, anything in this Indenture or . Except as otherwise provided in the terms of any series of Senior Securities of such Series contained pursuant to the contrary notwithstanding. With respect to Section 2.3, if an Event of Default described under clauses in clause (d) or (g) above with respect to all series of the Senior Securities then Outstanding, occurs and (h) aboveis continuing, then, and in each and every such case, unless the principal of all of the Senior Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all of the Senior Securities then Outstanding hereunder (treated as one class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Senior Securities of any series are Original Issue Discount Securities, such Series portion of the principal amount as may be specified in the terms of such series) of all of the Senior Securities then Outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and upon such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (e) or (f) above occurs and is continuing, then the principal amount of all the Senior Securities then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act by on the part of the Trustee or any Holder. Except as otherwise provided in the terms of any series of Subordinated Securities pursuant to Section 2.3, if an Event of Default described in clause (d) or (g) above with respect to all series of Subordinated Securities then Outstanding, occurs and is continuing, then, and in each and every such case, unless the principal of all of the Subordinated Securities shall have already become due and payable, either the Trustee or the HoldersHolders of not less than 25% in aggregate principal amount of all of the Subordinated Securities then Outstanding hereunder (treated as one class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Subordinated Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all of the Subordinated Securities then Outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and upon such declaration, the same shall become immediately due and payable. This provisionIf an Event of Default described in clause (e) or (f) above occurs and is continuing, howeverthen the principal amount of all of the Subordinated Securities then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than all series of Senior Securities then Outstanding, then, and in each and every such case, except for any series of Senior Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Senior Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than all series of Subordinated Securities then Outstanding, then, and in each and every such case, except for any series of Subordinated Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Subordinated Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. The foregoing provisions are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdiction, the Company moneys due shall have been obtained or entered as hereinafter provided,
(A) the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable pay
(except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereofi) all matured installments of interest, if any, interest upon all the Securities of such Series and series (or all the Securities, as the case may be); and
(ii) the principal of any and all Securities of such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration acceleration; and
(with iii) interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of such series (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit; and
(iv) and in Dollars such amount as shall be sufficient to cover reasonable compensation all amounts payable to the Trustee, its agents, attorneys and counsel and Trustee pursuant to Section 6.6; and
(B) all other expenses and liabilities incurred, and all advances made, by Events of Default under the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of such Series series voting as a separate class (or of all the Securities, as the case may be, voting as a single class), then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 2 contracts
Samples: Indenture (Plum Creek Timber Co Inc), Indenture (Plum Creek Timber Co Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturity, upon redemption (for any sinking fund payment or otherwise)maturity, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or[INTENTIONALLY DELETED]
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors. Then, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waivedcase, unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series Securities, the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, interest at the same rate borne by as the Securities rate of such Series (or, interest specified in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein--then and in every such case the Holders holders of at least a majority in the aggregate principal amount at Maturity of the Securities of such Series then Outstandingoutstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Weirton Steel Corp), Second Supplemental Indenture (Weirton Steel Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case “Event of Default” with respect to Securities of any series, wherever used herein, means any one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; provided, that, a valid extension of an interest payment period by the Issuer in accordance with the terms of such Securities shall not constitute a failure to pay interest; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series or contained in this Indenture contained and relating to (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such Series, series) for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of the series to which such Series, a written notice specifying such event of default and requiring the Company covenant or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4agreement relates; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the CompanyIssuer, the General Partner or the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer, the General Partner or the Guarantor for any substantial part of its or their respective property or ordering the winding up or liquidation of its or their affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) a decree or order adjudging the CompanyIssuer, the General Partner or the Guarantor shall commence a voluntary case under any applicable bankruptcy, insolvency or any of its Designated Subsidiaries to be insolventother similar law now or hereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the CompanyIssuer, the General Partner or the Guarantor or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor its or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against ittheir property, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(ig) any other Event of Default provided in any the supplemental indenture indenture, officer’s certified or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Series; then series. If an Event of Default described in clause (a), (b) or (c) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of each such Series affected series then Outstanding hereunder, hereunder (each such series voting as a separate class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration declaration, the same shall become and shall be immediately due and payable, anything in this Indenture or . Except as otherwise provided in the terms of any series of Senior Securities of such Series contained pursuant to the contrary notwithstanding. With respect to Section 2.3, if an Event of Default described under clauses in clause (d) or (g) above with respect to all series of the Senior Securities then Outstanding, occurs and (h) aboveis continuing, then, and in each and every such case, unless the principal of all of the Senior Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all of the Senior Securities then Outstanding hereunder (treated as one class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Senior Securities of any series are Original Issue Discount Securities, such Series portion of the principal amount as may be specified in the terms of such series) of all of the Senior Securities then Outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and upon such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (e) or (f) above occurs and is continuing, then the principal amount of all the Senior Securities then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act by on the part of the Trustee or any Holder. Except as otherwise provided in the terms of any series of Subordinated Securities pursuant to Section 2.3, if an Event of Default described in clause (d) or (g) above with respect to all series of Subordinated Securities then Outstanding, occurs and is continuing, then, and in each and every such case, unless the principal of all of the Subordinated Securities shall have already become due and payable, either the Trustee or the HoldersHolders of not less than 25% in aggregate principal amount of all of the Subordinated Securities then Outstanding hereunder (treated as one class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Subordinated Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all of the Subordinated Securities then Outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and upon such declaration, the same shall become immediately due and payable. This provisionIf an Event of Default described in clause (e) or (f) above occurs and is continuing, howeverthen the principal amount of all of the Subordinated Securities then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than all series of Senior Securities then Outstanding, then, and in each and every such case, except for any series of Senior Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Senior Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than all series of Subordinated Securities then Outstanding, then, and in each and every such case, except for any series of Subordinated Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Subordinated Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. The foregoing provisions are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdiction, the Company moneys due shall have been obtained or entered as hereinafter provided,
(A) the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable pay
(except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereofi) all matured installments of interest, if any, interest upon all the Securities of such Series and series (or all the Securities, as the case may be); and
(ii) the principal of any and all Securities of such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration acceleration; and
(with iii) interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of such series (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit; and
(iv) and in Dollars such amount as shall be sufficient to cover reasonable compensation all amounts payable to the Trustee, its agents, attorneys and counsel and Trustee pursuant to Section 6.6; and
(B) all other expenses and liabilities incurred, and all advances made, by Events of Default under the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of such Series series voting as a separate class (or of all the Securities, as the case may be, voting as a single class), then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 2 contracts
Samples: Indenture (Weyerhaeuser Co), Indenture (Plum Creek Timber Co Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the indenture supplement, the Company Board Resolution or other instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least not less than 25% in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4then Outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking Company shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of corporate action by a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or the Company shall commence any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency, reorganization, arrangement or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this clause (d) called “Proceeding”); or if there shall be commenced against the Company any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged or unstayed for a period of 90 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Guarantor Company or any substantial portion of the property of the Company shall be appointed and shall not be discharged within a period of 90 days; or the Company by any act shall indicate consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another entity or the transfer of its Designated Subsidiaries assets as a whole, or substantially as a whole, to such other entity as provided in furtherance Section 9.01 shall not make the rights and remedies herein enforceable under this clause (d) if such last-mentioned entity shall, as a part of any such actionconsolidation, amalgamation, merger or transfer, and within 90 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.01; or
(ie) any other Event of Default provided in any the supplemental indenture or Company Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (hd) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses clause (g) and (hd) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, (x) the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 2.03 for the Securities of such Series and except as provided in Section Sections 2.12(b), (de) and (e) hereoff)) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturitymaturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel counsel, and (y) any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waivedremedied, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 2 contracts
Samples: Indenture (Alerus Financial Corp), Indenture (Alerus Financial Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any of, and premium on any Security (if any) on, the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration of acceleration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, any Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company or the such Guarantor in this Indenture, as the case may be, contained in the Securities of such Series, Series or in this Indenture contained and relating to such Series, Series for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, such Guarantor to remedy the same and stating that such notice is a “Notice notice of Defaultdefault” hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, such Guarantor by the Trustee for the Securities of such Series, or to the Company, the Company or such Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Outstanding; or
(d) if any event of a default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor ’s or any Covered Guarantor’s outstanding indebtedness (other than Securities of its Designated Subsidiaries (including, in each case, an Event of Default under any other such Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default the Guarantees) in the payment by the Company or such Covered Guarantor, when due, of more than $30,000,000 in an aggregate principal amount of such Indebtedness at indebtedness exceeding $75,000,000, or default under any such indebtedness (other than Securities of such Series or the maturity thereof (after giving effect to any applicable grace periodGuarantees) or shall result in such Indebtedness in an aggregate principal amount in excess of exceeding $30,000,000 75,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, and in each case without such acceleration having been rescinded or annulled, or without such indebtedness having been paid in full, or without there having been deposited into trust a sum of money sufficient to pay in full such indebtedness, within ten days after the date on which written notice specifying such default shall not be cured or breach and stating that such acceleration shall not be rescinded or annulled within notice is a period “notice of 30 days after there default” hereunder shall have been given by registered or certified mail to the Company and the or such Covered Guarantor by the Trustee for the Securities of such Series, or to the Company, the Company or such Covered Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring Series at the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4time Outstanding; or
(e) (i) the Company or any Covered Guarantor, pursuant to or within the meaning of any Bankruptcy Law, (A) commences a voluntary case or proceeding, (B) consents to the entry of an order for relief against it in an involuntary case or proceeding or to the commencement of any bankruptcy or insolvency case or proceeding against it, (C) consents to the appointment of a Receiver of it or for its properties and assets substantially as an entirety; (D) makes a general assignment for the benefit of creditors; or (ii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company or any Covered Guarantor in an involuntary case, (B) appoints a Receiver of the Company or any Covered Guarantor or for their respective properties and assets substantially as an entirety, (C) orders the winding up or liquidation of the Company or any Covered Guarantor, (D) adjudges the Company or any Covered Guarantor bankrupt or insolvent or (E) approves as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect to the Company or any Covered Guarantor, and any such order or decree described in this clause (e)(ii) remains unstayed and in effect for 90 days; provided, however, that any rights and remedies in this Indenture arising under this Section 5.1(e) shall fail within 60 days to pay, bond not be enforceable if a resolution or otherwise discharge any uninsured judgment or court order for the payment winding up the Company or any Covered Guarantor with a view to a transaction in accordance with Section 9.1 hereof has been issued and such successor Person shall, as a part of money in excess such transaction, comply with the requirements of $30,000,000, which is not stayed on appeal Section 9.1 hereof within 90 days of the date of such resolution or is not otherwise being appropriately contested in good faith; ororder;
(f) except as permitted by this Indenture, the any Guarantee shall be held by a court of competent jurisdiction in any non-appealable judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor any Guarantor, or any Person acting on its behalfbehalf of any such Guarantor, shall deny or disaffirm the Guarantor’s in writing its obligations under the its Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any the applicable Board Resolution, Officer’s Certificate or supplemental indenture or Board Resolution under which such Series pursuant to Section 2.1 and Section 2.3 hereof with respect to Outstanding Securities of Securities is issued or in the form of Security for such Series; then then, and in each and every such case (other than an Event of Default under clause (g) and (he) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration of acceleration, the same shall become and shall be immediately due and payable, anything in this Indenture or in the terms of Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses clause (g) and (he) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration of acceleration or other act by the Trustee or the Holders. This provisionThe provisions of the immediately preceding paragraph are subject, howeverin each case, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay pay, (A) in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 hereof for the Securities of such Series and except as provided in Section Sections 2.12(b), (d) and (e) hereof) ), all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturitymaturity) to the date of such payment or deposit) and (B) such amount in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other fees, expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and counsel. Upon such payment or deposit with the Trustee by the Company, any and all defaults under this Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the remedied. The Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration of acceleration and its consequences; consequences (except for the non-payment of the principal of Securities of such Series which shall have become due by acceleration, which shall require the consent of the Holders of each Security of such Series then Outstanding), but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 2 contracts
Samples: Indenture (Fidelity National Financial, Inc.), Indenture (F&G Annuities & Life, Inc.)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Unless otherwise provided in the applicable indenture supplement or Board Resolutions with respect to Securities of any series, "Event of Default" with respect to the Securities of such series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a1) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b2) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c3) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or
(4) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series (other than a covenant or agreement in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Section specifically dealt with) or contained in this Indenture contained and relating to (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such Series, series) for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4all series affected thereby; or
(e5) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor Issuer or any of its Designated Subsidiaries Restricted Subsidiary in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, rehabilitator, sequestrator (or similar official) of the Issuer or of any Restricted Subsidiary for any substantial part of its or their property or ordering the winding up or liquidation of its or their affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii6) a decree or order adjudging the Company, the Guarantor Issuer or any of its Designated Subsidiaries to be insolventRestricted Subsidiary shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, rehabilitator, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of Restricted Subsidiary or for any substantial part of the property of the Company, the Guarantor its or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against ittheir property, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i7) an event of default, as defined in any one or more mortgages, indentures, instruments, bonds, debentures, notes or other similar instruments under which there may be issued, or by which there may be secured or evidenced, any indebtedness (other than the Securities of such series or nonrecourse obligations) ("Indebtedness") in excess of $25,000,000 for money borrowed by the Issuer or a Restricted Subsidiary shall occur, if such event of default shall result in the acceleration of such Indebtedness prior to its expressed maturity unless such Indebtedness is discharged or such acceleration is cured, waived, rescinded or annulled within 30 days after written notice thereof shall have been given by registered or certified mail, return receipt requested, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of each series which notice shall state that it is a "Notice of Default" hereunder; or
(8) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Seriesseries; provided that if any such default or acceleration referred to in clause (7) above shall cease or be cured, waived, rescinded or annulled, then and in each and every such case the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon cured. If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default under described in clause (g5) or (6)) occurs and (h) above)is continuing, so long as then, and in each and every such Event case, except for any series of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series then Outstanding hereunder, that series by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if any of the case Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series that series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration declaration, the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable payable. If an Event of Default specified in clause (5) or (6) shall have occurred, the principal amount on all of the Securities shall automatically, and without any declaration or other act by action on the part of the Trustee or the Holdersany Holder, become immediately due and payable. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series series and the principal of any and all Securities of each such Series series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, at ) specified in the yield to Maturity) Securities of such series to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of each such Series then Outstandingseries, or of all the Outstanding Securities of any series, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to that series and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 2 contracts
Samples: Subordinated Indenture (Scottish Annuity & Life Holdings LTD), Senior Indenture (Scottish Annuity & Life Holdings LTD)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case of one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of all or any part of the principal or Change of Control purchase price of, or premium, if any, on, any of the Securities as and when the same shall become due and payable either at maturity, upon any redemption or required repurchase, by declaration of acceleration or otherwise;
(b) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or;
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument of the Issuer under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the CompanyIssuer that has resulted in the acceleration of such Indebtedness, the Guarantor or any of its Designated Subsidiaries (including, default occurring in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of any such Indebtedness at final maturity (and after the maturity thereof (after giving effect to expiration of any applicable grace period) or shall result in periods), other than such Indebtedness in (i) which is payable solely out of the property or assets of a partnership, joint venture or similar entity of which the Issuer is a participant, or which is secured by a lien on the property or assets owned or held by such entity, without further recourse to or liability of the Issuer, or (ii) the principal amount in excess of $30,000,000 becoming or being declared due of, and payable prior interest on, which, when added to the date principal of and interest on which it would otherwise become due and payableall other such Indebtedness (exclusive of Indebtedness under clause (i) above), does not exceed $20,000,000; or
(d) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the Securities or in this Indenture and such default shall not be cured or such acceleration shall not be rescinded or annulled within failure continues for a period of 30 days after there the date on which written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company and the Guarantor Issuer by the Trustee Trustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring at the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4time Outstanding; or
(e) the Company one or the Guarantor shall fail within 60 days to paymore final judgments, bond decrees or otherwise discharge orders of any uninsured judgment court, tribunal, arbitrator, administrative or court order other governmental body or similar entity for the payment of money shall be rendered against the Issuer or any of its properties in an aggregate amount in excess of $30,000,00020,000,000 (excluding the amount thereof covered by insurance) and such judgment, which is not stayed on appeal decree or is not otherwise order shall remain unvacated, undischarged and unstayed for more than 90 consecutive days, except while being appropriately contested in good faithfaith by appropriate proceedings; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect, or a decree or order adjudging the Issuer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Issuer under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(hg) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Issuer shall commence a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect or of a voluntary any other case or proceeding seeking to be adjudicated insolvent a bankrupt or the insolvent, or consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable bankruptcysuch law, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency proceedings case or proceeding against itthe Issuer, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of a petition or answer or consent seeking reorganization, arrangement, adjustment reorganization or composition of the Company, the Guarantor or any of its Designated Subsidiaries relief under any such applicable federal or state law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries Issuer to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee trustee, sequestrator or other similar official of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of any substantial part of the property of the Companyits property, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries Issuer in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied the Issuer specified in 4.1(f) or waived4.1(g) hereof), unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interestinterest upon all the Securities and the principal or Change of Control purchase price and premium, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which that shall have become due otherwise than by such acceleration (with interest upon such principal and Change of Control purchase price and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the rate borne by the Securities of such Series (or, interest specified in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its their respective agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurred, incurred and all reasonable advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which that shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults (except, unless theretofore cured, a default in payment of principal of, or Change of Control purchase price or premium, if any, or interest on, the Securities) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. If an Event of Default specified in Section 4.1(f) or 4.1(g) hereof occurs with respect to the Issuer, the principal of and accrued interest on the Security shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholder.
Appears in 1 contract
Samples: Indenture (NRG Energy Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(ai) default in the payment of any installment interest (including the payment of interest in Additional Securities in lieu of a cash payment) upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(bii) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable payable, at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(ciii) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company Issuer contained in the Notes or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, Purchase Agreement for a period of 60 10 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders holders of at least 25% a majority in aggregate principal amount at Maturity of the Securities of such Series Notes at the time Outstanding in accordance with Section 11.4outstanding; or
(div) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor Issuer or any Subsidiary shall fail to make any payment in respect of its Designated Subsidiaries (includingany Material Financial Obligation when due, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or;
(ev) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured a judgment or court order (not covered by insurance) for the payment of money shall be rendered against the Issuer or any Subsidiary of the Issuer in excess of $30,000,000250,000 individually or $250,000 in the aggregate for all such judgments or orders against all such Persons (treating any deductibles, self insurance or retention as not so covered) that shall not be discharged, and all such judgments and orders remain outstanding and there shall be any period of 30 consecutive days following entry of the judgment or order in excess of $250,000 or the judgment or order which is not stayed on causes the aggregate amount described above to exceed $250,000 during which a stay of enforcement of such judgment or order, by reason of a pending appeal or is otherwise, shall not otherwise being appropriately contested be in good faitheffect; or
(fvi) except as permitted by this Indenture, the Guarantee an involuntary case or other proceeding shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or commenced against the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor Issuer or any of its Designated Subsidiaries seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an involuntary proceeding order for relief shall be entered against the Issuer or any of its Subsidiaries under the federal bankruptcy laws as now or hereafter in effect;
(vii) the Issuer or any of its Subsidiaries shall commence a voluntary case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law and such decree now or order shall remain unstayed and hereafter in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolventeffect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of or for any substantial part of the property of the Company, the Guarantor Issuer or any of its Designated Subsidiaries Subsidiaries, or ordering the winding up or liquidation of the affairs of the Company, the Guarantor Issuer or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or Subsidiaries shall make any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors;
(viii) any representation, warranty, certification or statement made by the Issuer in the Purchase Agreement or in any certificate, financial statement or other document delivered pursuant to the Purchase Agreement shall be inaccurate or incorrect in any material respect when made;
(ix) any Lien created by any of the Collateral Documents shall at any time fail to constitute a valid and perfected Lien on all of the Collateral purported to be subject to such Lien, subject to no prior or equal Lien (except Permitted Liens) or the taking of corporate action by the Company, the Guarantor Issuer or any of its Designated Subsidiaries Subsidiary shall so assert in furtherance of any such action; orwriting;
(ix) Thomxx X. Xxxxxxxx xxxll cease to be chief executive officer of the Issuer;
(xi) the shareholders of the Issuer shall fail to approve the Transaction by October 31, 1999;
(xii) the shareholders of the Issuer shall, by affirmative vote at any time, fail to approve the Transaction;
(xiii) Issuer shall have accepted a Higher Offer as defined in the Preferred Stock Purchase Agreement;
(xiv) the Preferred Stock Purchase Agreement shall have been terminated for any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Seriesreason; then then, and in each and every such case (other than an Event of Default under clause (gspecified in Section 4(a)(vi) and (hor 4(a)(vii) abovehereof), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series the Notes shall have already become due and payable, either (x) the Trustee for such Series or the Holders holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series Notes then Outstanding hereunderoutstanding, by notice in writing to the Company Issuer (and to the Trustee if given by such Holders"Acceleration Notice"), may declare the principal (or, in the case of Original Issue Discount Securities, such entire principal amount as may be determined in accordance with of the terms thereof) of all Notes and the Securities of such Series interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payablepayable and (y) the Issuer shall issue to each Holder, anything in this Indenture or in Warrants exercisable for a number of shares of Preferred Stock that is calculated by dividing the Securities aggregate principal amount of the Notes held by such Series contained to Holder by the contrary notwithstandingproduct of 10,000 and the average of the trading price of the Issuer's Common Stock, as reported on the Nasdaq National Market for the 10 Business Days immediately preceding the date of the Acceleration Notice. With respect to If an Event of Default described under clauses (gspecified in Section 4(a)(vi) and (hor 4(a)(vii) aboveoccurs, the principal of all Securities of such Series and accrued interest on the Notes shall become and be immediately due and payable without any declaration or other act by on the Trustee or the Holderspart of any Noteholder. This provisionThe foregoing paragraph, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) Notes shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with in trust for the Trustee benefit of the Noteholders a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series Notes and the principal of any and all Securities of such Series Notes which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series (or, interest specified in the case of Original Issue Discount SecuritiesNotes, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred), and all advances made, by the Trustee, its agents, attorneys and counsel and if any and all defaults and Events of Default under this IndentureNote, other than the nonpayment non-payment of the principal of Securities of such Series the Notes which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein; then and in every such case case, the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series Notes then Outstandingoutstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such SeriesIssuer, may waive all defaults and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Senior Convertible Floating Rate Bridge Note (Bank of America Corp /De/)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Event of Default", with respect to the Securities of any series, wherever used herein, means each one or more of the following Events events which shall have occurred and be continuing (whatever the reason for such Event of Default (and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless it such event is either inapplicable to a particular Series series or it is specifically deleted from or modified in the instrument establishing applicable Board Resolution or in the supplemental indenture under which such Series and series of Securities is issued, as the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securitiescase may be, as contemplated by Section 3.1:
(a) default the Issuer defaults in any payment of the principal of or premium, if any, on such series when it becomes due and payable;
(b) the Issuer defaults in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest the same becomes or such Additional Amounts become due and payable, and continuance of such default continues for a period of 30 days; or;
(bc) default the Issuer defaults in the payment deposit of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, when and as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained due and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, payable by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity terms of the Securities of such Series at the time Outstanding in accordance with Section 11.4; orseries;
(d) if the Issuer fails to comply with any event of its covenants or agreements contained in such series of Securities or this Indenture (other than those referred to in (a) or (b) above) and such failure continues for 60 days after the notice specified below;
(e) a default as defined in occurs under any mortgage, indenture or instrument under which there may be issued, issued or by which there may be secured or evidenced, evidenced any Indebtedness for money borrowed by the Issuer, whether such Indebtedness or guarantee now exists, or is created after the date of this Indenture, which default results in the Company, the Guarantor or any acceleration of such Indebtedness prior to its Designated Subsidiaries (includingexpress maturity and, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) of which has been so accelerated, aggregates $100 million or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, more and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of continues for 30 days after the notice specified below;
(f) the Issuer [or, so long as there shall have been given are any Guarantors, any Guarantor that constitutes a Significant Subsidiary of the Issuer]* pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the Company and the Guarantor by the Trustee or entry of an order for relief against it in an involuntary case;
(iii) consents to the Company, the Guarantor and the Trustee by the Holders appointment of at least 25% in aggregate principal amount at Maturity a Custodian of the Outstanding Securities it or for any substantial part of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4its property; or
(eiv) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order makes a general assignment for the payment benefit of money in excess of $30,000,000, which is not stayed on appeal its creditors or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in takes any judicial proceeding comparable action under any foreign laws relating to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guaranteeinsolvency; or
(g) the entry by a court having of competent jurisdiction ofenters an order or decree under any Bankruptcy Law that:
(i) a decree or order is for relief in respect against the Issuer [or, so long as there are any Guarantors, any Guarantor that constitutes a Significant Subsidiary of the Company, the Guarantor Issuer]* or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; orcase;
(ii) appoints a decree Custodian of the Issuer [or, so long as there are any Guarantors, any Guarantor that constitutes a Significant Subsidiary of the Issuer]* or order adjudging the Company, the Guarantor or for any substantial part of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; orproperty;
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering orders the winding up or liquidation of the affairs Issuer [or, so long as there are any Guarantors, any Guarantor that constitutes a Significant Subsidiary of the Company, Issuer]*or any similar relief is granted under any foreign laws and the Guarantor order or any of its Designated Subsidiariesdecree remains unstayed and in effect for 60 days; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture established by or pursuant to a Board Resolution under which or one or more indentures supplemental hereto as applicable to the Securities of such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such series. --------- * This language to be included if debt securities are guaranteed. An Event of Default with respect to such Series shall not have been remedied or waived, unless the principal any particular series of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in issued under this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to does not necessarily constitute an Event of Default described under clauses (g) and (h) above, the principal with respect to any other series of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults issued under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities, that is to say:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking of corporate action by the CompanyCompany shall be adjudicated insolvent or bankrupt, the Guarantor or shall petition or shall apply to any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or court having jurisdiction in the form of Security premises for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree appointment of a court of competent jurisdictionreceiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the Guarantor property of the Company; or the Company shall pay commence any proceeding relating to the Company or shall deposit with any substantial portion of the Trustee a sum sufficient to pay property of the Company under any insolvency, reorganization, arrangement, or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in the Currency effect (hereinafter in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), this subsection (d) and (e) hereof) all matured installments of interest, called "Proceeding"); or if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as there shall be sufficient to cover reasonable compensation to commenced against the TrusteeCompany any Proceeding and an order approving the petition shall be entered, its agentsor such Proceeding shall remain undischarged for a period of 60 days; or a receiver, attorneys and counsel and all other expenses and liabilities incurredtrustee, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.liquidator or
Appears in 1 contract
Samples: Indenture (Kellogg Co)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities, that is to say:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking Company shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of corporate action by a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or the Company shall commence any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency, reorganization, arrangement, or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this subsection (d) called "Proceeding"); or if there shall be commenced against the Company any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Guarantor Company or any substantial portion of the property of the Company shall be appointed and shall not be discharged within a period of 60 days; or the Company by any act shall indicate consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another company or the transfer of its Designated Subsidiaries assets as a whole, or substantially as a whole, to such other company as provided in furtherance Section 9.1 shall not make the rights and remedies herein enforceable under this subsection (d) of any Section 5.1 if such actionlast-mentioned company shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.1; or
(ie) any other Event of Default provided in any supplemental indenture the Supplemental Indenture or resolution of the Board Resolution of Directors under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency currency or currency unit in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (de) and (ef) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturitymaturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, remedied then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Kellogg Co)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Unless otherwise set forth in a supplemental indenture, "Event of Default" with respect to Securities of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series (other than a covenant or warranty in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Section specifically dealt with) or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series at the time Outstanding in accordance with Section 11.4all series affected thereby; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(iie) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(if) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Series; series. If an Event of Default described in clauses (a), (b), (c) or (f) (only if the Event of Default under clause (c) or (f), as the case may be, is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of each such Series affected series then Outstanding hereunder, hereunder (voting as a single class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance the terms of such series) of all Securities of all such affected series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (c) or (f) (only if the Event of Default under clause (c) or (f), as the case may be, is with respect to all series of Securities then Outstanding), (d) or (e) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of such Series then Outstanding, and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of each such Series series (or of all the Securities, as the case may be) and the principal of any and all Securities of each such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of such series (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein -- then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of each such Series series or of all the Securities, in each case voting as a single class, then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 1 contract
Samples: Indenture (Nvidia Corp/Ca)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities, that is to say:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal notes is defined as: o default in the payment of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity any interest on any of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared notes when due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities continuance of such Series are payable (except as otherwise provided pursuant to Section 2.3 default for the Securities a period of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.30 days;
Appears in 1 contract
Samples: Indenture (Office Depot Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Except as otherwise provided with respect to the Securities of any series as contemplated by Section 2.3, "Event of Default" with respect to Securities of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect to any Series (whatever the reason for such Event of Securities:Default and whether it shall be voluntary
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series or in this Indenture contained and relating to (other than a covenant or warranty in respect of the Securities of such Series, series a default in the performance or breach of which is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, or by overnight courier or by hand delivery in each case with evidence of the receipt of such overnight courier or hand delivery by the Issuer, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4all series affected thereby; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(ig) any other Event of Default provided in any the supplemental indenture or indenture, Board Resolution under which or Officers' Certificate establishing the terms of such Series series of Securities is issued or in the form of Security for such Series; series. Except as otherwise provided with respect to the Securities of any series as contemplated by Section 2.3, if an Event of Default described in clauses (a), (b), (c), (d) or (g) (if the Event of Default under clause (d) or (g), as the case may be, is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series series then Outstanding hereunder, hereunder (such series voting as a separate class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration declaration, the same shall become and shall be immediately due and payable, anything in this Indenture or in . Except as otherwise provided with respect to the Securities of such Series contained to the contrary notwithstanding. With respect to any series as contemplated by Section 2.3, if an Event of Default described under clauses in clause (d) or (g) and (h) above, if the principal Event of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), Default under clause (d) and or (e) hereof) all matured installments of interestg), if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in as the case of Original Issue Discount Securitiesmay be, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.is with
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the indenture supplement, the Company Board Resolution or other instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of, or premium, if any, of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least not less than 25% in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4then Outstanding; or
(d) the Company or any Principal Subsidiary Bank shall make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the Company or any Principal Subsidiary Bank shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any Principal Subsidiary Bank or any substantial portion of the property of the Company or any Principal Subsidiary Bank; or the Company or any Principal Subsidiary Bank shall commence any proceeding relating to the Company or any Principal Subsidiary Bank or any substantial portion of the property of the Company or any Principal Subsidiary Bank under any insolvency, reorganization, arrangement or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this clause (d) called “Proceeding”); or if there shall be commenced against the Company or any event Principal Subsidiary Bank any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged or unstayed for a period of default as defined 90 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Company or any Principal Subsidiary Bank or any substantial portion of the property of the Company or any Principal Subsidiary Bank shall be appointed and shall not be discharged within a period of 90 days; or the Company or any Principal Subsidiary Bank by any act shall indicate consent to or approval of or acquiescence in any mortgageProceeding or the appointment of a receiver, indenture trustee, liquidator or instrument under which there may be issuedsequestrator of, or by which there may be secured for, the Company or evidenced, any Indebtedness Principal Subsidiary Bank or any substantial portion of the Companyproperty of the Company or any Principal Subsidiary Bank; provided that a resolution or order for winding-up the Company or any Principal Subsidiary Bank with a view to its consolidation, amalgamation or merger with another entity or the transfer of its assets as a whole, or substantially as a whole, to such other entity as provided in Section 9.01 shall not make the rights and remedies herein enforceable under this clause (d) if such last-mentioned entity shall, as a part of such consolidation, amalgamation, merger or transfer, and within 90 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.01; or
(e) any default under any indebtedness of, or guaranteed by, the Guarantor or any Company having an aggregate principal amount outstanding of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities)at least $25,000,000, whether such Indebtedness indebtedness now exists or shall hereafter be is created or incurred, shall happen and shall consist of default incurred in the payment future, which default (i) constitutes a failure to pay any portion of more than $30,000,000 in the principal amount of such Indebtedness at indebtedness when due and payable after the maturity thereof (after giving effect to expiration of any applicable grace periodperiod or (ii) or shall result results in such Indebtedness in principal amount in excess of $30,000,000 indebtedness becoming due or being declared due and payable prior to the date on which it otherwise would otherwise have become due and payablepayable without, and in the case of clause (i), such default shall not be cured indebtedness having been discharged or, in the case of clause (ii), without such indebtedness having been discharged or such acceleration having been rescinded or annulled; provided that the foregoing shall not be rescinded or annulled within a period constitute an Event of 30 days after there shall have been given Default with respect to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4any Subordinated Securities; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; orand
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any the supplemental indenture or Company Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and then, solely with respect to Senior Securities of a Series, in each and every such case (other than an Event of Default under clause (g) and (hd) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to Senior Securities and Subordinated Securities of a Series, in the case of an Event of Default described under clauses clause (g) and (hd) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, (x) the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 2.03 for the Securities of such Series and except as provided in Section Sections 2.12(b), (de) and (e) hereoff)) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturitymaturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel counsel, and (y) any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such accelerationacceleration (only with respect to Senior Securities), shall have been cured or waivedremedied, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (First Busey Corp /Nv/)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events events (each an "Event of Default") (whatever the reason for such Event of Default (unless and whether it is either inapplicable shall be voluntary or involuntary or be effected by operation of law or pursuant to a particular Series any judgment, decree or it is specifically deleted from order of any court or modified in the instrument establishing such Series and the form any order, rule or regulation of Security for such Seriesany administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, as and on this Debenture when such interest the same becomes or such Additional Amounts become due and payable, payable and continuance of such the default continues for a period of 30 10 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, this Debenture when such principal or premium the same becomes or such Additional Amounts become due and payable at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the agreements or covenants or agreements on the part of the Company or the Guarantor Issuer contained in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained Debenture (other than those covered by clauses (a) and relating to such Series, (b) above) for a period of 60 10 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that Issuer remedy the same, shall have been given by facsimile, registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Issuer; or
(d) if Issuer pursuant to or within the meaning of any event U.S. Bankruptcy Law (as hereinafter defined):
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of default as defined an order for relief against it in any mortgage, indenture an involuntary case or instrument under which there may be issued, proceeding,
(iii) consents to the appointment of a Custodian of it or by which there may be secured for all or evidenced, any Indebtedness of the Company, the Guarantor or any substantially all of its Designated Subsidiaries property,
(includingiv) makes a general assignment for the benefit of its creditors, or
(v) admits in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in writing its inability to pay its debts as the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise same become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4due; or
(e) a court of competent jurisdiction enters an order or decree under any U.S. Bankruptcy Law that:
(i) is for relief against Issuer in an involuntary case,
(ii) appoints a Custodian of Issuer or for all or substantially all of the Company property of Issuer, or
(iii) orders the liquidation of Issuer, and such order or the Guarantor shall fail within decree remains unstayed and in effect for 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faithdays; or
(f) except as permitted by if, at any time after the date hereof, this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason Debenture ceases to be in full force and effect or if this Debenture is declared by a court to be null and void or the Guarantor enforceability or validity thereof is contested by the Issuer or the Issuer denies in writing that it has any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations further liability under the Guaranteethis Debenture; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect if any event of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding default occurs under any applicable bankruptcy, insolvency, reorganization other Debt (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvencyas hereinafter defined), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) if any proceeding is commenced against or affecting the commencement by the CompanyIssuer:
(A) seeking to adjudicate it a bankrupt or insolvent, the Guarantor or
(B) seeking liquidation, dissolution, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or any of its Designated Subsidiaries of property or debts or making a voluntary proceeding proposal with respect to it under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate relating to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or compromise of debts or other similar law or to laws (including, without limitation, any application under the commencement of any insolvency proceedings against itU.S. Bankruptcy Law, or with respect to reorganization, arrangement or compromise of debt, under the filing by laws of the Companyjurisdiction of incorporation of the Issuer, the Guarantor or
(C) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the undertaking, property and assets of the CompanyIssuer and such proceeding is not being contested in good faith by appropriate proceedings or, if so contested remains outstanding, undismissed and unstayed more than 60 days from the institution of such first mentioned proceeding; provided however, that notwithstanding any such 60 day period shall not have elapsed, an Event of Default shall be deemed to have occurred if such proceeding remains outstanding and, after the date of commencement of such proceeding, the Guarantor or Issuer does not meet its payroll for any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any pay period arising during such action60 day period; or
(i) if a receiver or other custodian (interim or permanent) of the assets of the Issuer or any part thereof is appointed by private instrument or by court order, if any execution, sequestration, extent or other Event process of Default provided any court becomes enforceable against the Issuer or the assets of the Issuer or any part thereof, or if distress or analogous process is made against the assets of the Issuer or any part thereof; or
(j) if any mortgage, charge, lien, security interest or other encumbrance affecting any real or personal property of the Issuer becomes enforceable; or
(k) the Issuer admits its inability to pay its debts generally as they become due or otherwise acknowledges its insolvency; or
(l) if (i) upon the election by the Issuer to redeem this Debenture subsequent to March 7, 2001 and prior to the Maturity Date pursuant to Section 5.3 hereof and the election by the Holder to convert this Debenture prior to the Redemption Date applicable to such redemption in any supplemental indenture accordance with Section 5.1 hereof or Board Resolution under which such Series (ii) upon the conversion of Securities is issued or in this Debenture on the form of Security for such Series; then and Maturity Date pursuant to Section 5.6 hereof, the Issuer fails to issue to the Holder freely tradeable securities as required pursuant to Section 5.1(f) hereof, then, in each and every such case (other than where an Event of Default under clause (g) and (h) above)occurs, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunderHolder, by notice in writing to the Company (and to the Trustee if given by such Holders)Issuer, may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of aggregate Debenture Amount plus all the Securities of such Series accrued and unpaid interest owing thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to ; provided that if an Event of Default described under clauses specified in clause (d), (e), (f), (g) and ), (h), (i), (j) aboveor (k) of this Section 3.1 occurs, the principal of Debenture Amount plus all Securities of such Series accrued and unpaid interest thereon shall become and be immediately due and payable without any declaration or other act by on the Trustee or part of Holder. If an Event of Default specified in clause (f) of this Section 3.1 occurs and is not cured within 20 days after the Holders. This provisionIssuer receives a notice of such Event of Default from the Issuer, howeverthen the Holder shall be entitled, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal andthereafter, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least deliver a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, Issuer notifying the Guarantor Issuer that the Debenture Amount then outstanding plus all accrued and unpaid interest is due and payable within 10 Business Days after the Trustee for receipt by the Securities Issuer of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonnotice.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Unless otherwise set forth in a supplemental indenture, "Event of Default" with respect to Securities of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series (other than a covenant or warranty in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Section specifically dealt with) or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series at the time Outstanding in accordance with Section 11.4all series affected thereby; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(iie) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(if) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Series; series. If an Event of Default described in clauses 5.01(a), 5.01(b), 5.01(c) or 5.01(f) (if the Event of Default under clause 5.01(c) or 5.01(f), as the case may be, is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of each such Series affected series then Outstanding hereunder, hereunder (voting as a single class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance the terms of such series) of all Securities of all such affected series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. If an Event of Default described in clause 5.01(c) or 5.01(f) (if the Event of Default under clause 5.01(c) or 5.01(f), as the case may be, is with respect to all series of Securities then Outstanding), 5.01(d) or 5.01(e) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of such Series then Outstanding, and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of each such Series series (or of all the Securities, as the case may be) and the principal of any and all Securities of each such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of each such series (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurred, and all advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence, its agentswillful misconduct, attorneys recklessness or bad faith, and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein--then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of each such Series series, or of all the Securities, in each case voting as a single class, then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 1 contract
Samples: Indenture (Nvidia Corp/Ca)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any of the Securities, the amount payable upon the redemption of any Securities, the Change in Control Purchase Price or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Asset Sale Offer Price as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable under this Indenture whether at their Stated Maturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration of acceleration, when due for purchase by the Company, or otherwise; or
(c) failure on default in the part performance or breach of any covenant or agreement of the Company or the Guarantor, as the case may be, duly to observe or perform any under this Indenture (other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, than a default in the Securities performance or breach of a covenant or agreement that is specifically dealt with elsewhere herein) and continuance of such Series, default or in this Indenture contained and relating to such Series, breach for a period of 60 30 days after there has been given, by registered or certified mail, to the date on which Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in principal amount of the outstanding Securities a written notice specifying such failure and requiring the Company default or the Guarantor, as the case may be, to remedy the same breach and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4"NOTICE OF DEFAULT" under this Indenture; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount any principal, premium, if any, or interest when due or after the expiration of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result period in such respect of any Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or any Restricted Subsidiary (including, without limitation, reimbursement obligations with respect to Performance Letters of Credit) having an outstanding principal amount (or with an outstanding 60 68 reimbursement obligation) of $2.5 million or more individually or in the Guarantor to cause aggregate or the acceleration of the maturity of any such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4Indebtedness; or
(e) one or more final judgments or orders rendered against the Company or any Restricted Subsidiary which require the Guarantor payment in money, either individually or in an aggregate amount, of more than $500,000 shall fail within 60 remain unsatisfied or unstayed for 30 consecutive days to pay, bond or otherwise discharge after any uninsured such judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faithbecomes final and nonappealable; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry of a decree or order by a court having competent jurisdiction of:
in the premises (i) a decree or order for relief in respect of the Company, the Guarantor Company or any of its Designated Subsidiaries Material Subsidiary in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or (ii) adjudging the Company or any such Material Subsidiary as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or any such Material Subsidiary under any such law, or (iii) appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or any Material Subsidiary or of any substantial part of any of their properties, or ordering the winding up or liquidation of any of their affairs, and the continuance of any such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iig) a decree or order adjudging the Company, institution by the Guarantor Company or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries Material Subsidiary of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or of a voluntary proceeding seeking to be adjudicated insolvent hereafter in effect, or the consent by the Company, the Guarantor Company or any of its Designated Subsidiaries Material Subsidiary to the entry of a decree or order for relief in an respect of the Company or any Material Subsidiary in any involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar such law or to the commencement institution of any bankruptcy or insolvency proceedings against itthe Company or such Material Subsidiary, or the filing by the Company, the Guarantor Company or any of its Designated Subsidiaries Material Subsidiary of a petition or answer or consent seeking reorganization, arrangement, adjustment reorganization or composition of the Company, the Guarantor or any of its Designated Subsidiaries relief under any applicable such law, or the consent by the Company, the Guarantor Company or any of its Designated Subsidiaries Material Subsidiary to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee trustee, sequestrator (or other similar official official) of the Company, the Guarantor Company or any of its Designated Subsidiaries of such Material Subsidiary or any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries their properties, or the making by the Company, the Guarantor Company or any of its Designated Subsidiaries Material Subsidiary of an assignment for the benefit of creditors, or the admission by the Company or any Material Subsidiary in writing of an inability to pay any of their debts generally as they become due or the taking of corporate action by the Company, the Guarantor Company or any of its Designated Subsidiaries Material Subsidiary in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then then, and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waivedcase, unless the principal of all of the Securities of such Series shall have already become due and payablepayable (and other than as specified in clauses (f) and (g) above), either the Trustee for such Series or the Holders holders of not less than at least 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such HoldersSecurityholders), may may, and the 61 69 Trustee at the request of such holders shall, declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in payable immediately after receipt by the Securities Company of such Series contained to the contrary notwithstandingwritten notice. With respect to If an Event of Default described under clauses specified in clause (f) or (g) above occurs and (h) aboveis continuing, then the principal of all Securities of such Series and the accrued interest thereon shall become and be immediately due and payable without any declaration or other act by on the part of the Trustee or the Holdersany Holder. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, (A) the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof1) all matured installments of interest, if any, interest upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series (or, interest specified in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars (2) such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its their respective agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys (B) the rescission would not conflict with any judgment or decree and counsel and (C) any and all defaults Events of Default under this Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein--then and in every such case the Holders holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstandingoutstanding, by written notice to the Company, Company and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default Default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Benton Oil & Gas Co)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturity, upon redemption (for any sinking fund payment or otherwise)maturity, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument evidencing or under which there may be issued, or by which there may be secured or evidenced, any Indebtedness the Issuer has at the date of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists this Indenture or shall hereafter be created or incurredhave outstanding at least $25,000,000 aggregate principal amount of indebtedness for borrowed money, shall happen and be continuing and such indebtedness shall consist of default in have been accelerated so that the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) same shall be or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared become due and payable prior to the date on which it the same would otherwise have become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 ten days after there notice thereof shall have been given to the Company and the Guarantor Issuer by the Trustee (if such event be known to it), or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying at the time outstanding; PROVIDED that if such event of default under such indenture or instrument shall be remedied or cured by the Issuer or waived by the holder of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without further action upon the part of either the Trustee or any of the Securityholders, and requiring PROVIDED FURTHER that, subject to the Company provisions of Sections 5.1 and 5.2, the Trustee shall not be charged with knowledge of any such default unless written notice thereof shall have been given to the Trustee by the Issuer, by the holder or an agent of the Guarantor to cause holder of any such acceleration to be rescinded indebtedness, by the trustee then acting under any indenture or annulled other instrument under which such default shall have occurred, or to cause such Indebtedness to be discharged and stating that such notice is a “Notice by the holders of Default” hereunder not less than 25% in accordance with Section 11.4the aggregate principal amount at maturity of the Securities at the time outstanding; or
(e) the Company repudiation by the Issuer of any of its obligations under the Security Documents or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge unenforceability in any uninsured judgment or court order for material respect of the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faithSecurity Documents against the Issuer; or
(f) except failure by the Issuer to maintain insurance as permitted required by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the GuaranteeSection 3.18; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Weirton Steel Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Unless otherwise set forth in a supplemental indenture, "Event of Default" with respect to Securities of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series (other than a covenant or warranty in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Section specifically dealt with) or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series at the time Outstanding in accordance with Section 11.4all series affected thereby; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(iie) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(if) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Series; series. If an Event of Default described in clauses (a), (b), (c) or (f) (if the Event of Default under clause (c) or (f), as the case may be, is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of each such Series affected series then Outstanding hereunder, hereunder (voting as a single class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance the terms of such series) of all Securities of all such affected series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (c) or (f) (if the Event of Default under clause (c) or (f), as the case may be, is with respect to all series of Securities then Outstanding), (d) or (e) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of such Series then Outstanding, and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of each such Series series (or of all the Securities, as the case may be) and the principal of any and all Securities of each such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of such series (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurred, and all advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence, its agentswillful misconduct, attorneys recklessness or bad faith, and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein -- then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of each such Series series or of all the Securities, in each case voting as a single class, then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 1 contract
Samples: Indenture (Nvidia Corp/Ca)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case of one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of all or any part of the principal or Change of Control purchase price of, or premium, if any, on, any of the Securities as and when the same shall become due and payable either at maturity, upon any redemption or required repurchase, by declaration of acceleration or otherwise;
(b) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or;
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument of the Issuer under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the CompanyIssuer that has resulted in the acceleration of such Indebtedness, the Guarantor or any of its Designated Subsidiaries (including, default occurring in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of any such Indebtedness at final maturity (and after the maturity thereof (after giving effect to expiration of any applicable grace period) or shall result in periods), other than such Indebtedness in (i) which is payable solely out of the property or assets of a partnership, joint venture or similar entity of which the Issuer is a participant, or which is secured by a lien on the property or assets owned or held by such entity, without further recourse to or liability of the Issuer, or (ii) the principal amount in excess of $30,000,000 becoming or being declared due of, and payable prior interest on, which, when added to the date principal of and interest on which it would otherwise become due and payableall other such Indebtedness (exclusive of Indebtedness under clause (i) above), does not exceed $20,000,000; or
(d) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the Securities or in this Indenture and such default shall not be cured or such acceleration shall not be rescinded or annulled within failure continues for a period of 30 days after there the date on which written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company and the Guarantor Issuer by the Trustee Trustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring at the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4time Outstanding; or
(e) the Company one or the Guarantor shall fail within 60 days to paymore final judgments, bond decrees or otherwise discharge orders of any uninsured judgment court, tribunal, arbitrator, administrative or court order other governmental body or similar entity for the payment of money shall be rendered against the Issuer or any of its properties in an aggregate amount in excess of $30,000,00020,000,000 (excluding the amount thereof covered by insurance) and such judgment, which is not stayed on appeal decree or is not otherwise order shall remain unvacated, undischarged and unstayed for more than 90 consecutive days, except while being appropriately contested in good faithfaith by appropriate proceedings; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect, or a decree or order adjudging the Issuer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Issuer under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(hg) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Issuer shall commence a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect or of a voluntary any other case or proceeding seeking to be adjudicated insolvent a bankrupt or the insolvent, or consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable bankruptcysuch law, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency proceedings case or proceeding against itthe Issuer, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of a petition or answer or consent seeking reorganization, arrangement, adjustment reorganization or composition of the Company, the Guarantor or any of its Designated Subsidiaries relief under any such applicable federal or state law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries Issuer to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee trustee, sequestrator or other similar official of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of any substantial part of the property of the Companyits property, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries Issuer in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied the Issuer specified in 5.1(f) or waived5.1(g) hereof), unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interestinterest upon all the Securities and the principal or Change of Control purchase price and premium, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which that shall have become due otherwise than by such acceleration (with interest upon such principal and Change of Control purchase price and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the rate borne by the Securities of such Series (or, interest specified in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its their respective agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurred, incurred and all reasonable advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which that shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults (except, unless theretofore cured, a default in payment of principal of, or Change of Control purchase price or premium, if any, or interest on, the Securities) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. If an Event of Default specified in Section 5.1(f) or 5.1(g) hereof occurs with respect to the Issuer, the principal of and accrued interest on the Security shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholder.
Appears in 1 contract
Samples: Indenture (NRG Energy Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following events ("Events of Default") (whatever the reason for such Event of Default (unless and whether it is either inapplicable voluntary or involuntary or is effected by operation of law or pursuant to a particular Series any judgment, decree or it is specifically deleted from order of any court or modified in the instrument establishing such Series and the form any order, rule or regulation of Security for such Seriesany administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(ai) default in payment when due of principal or premium on any Note in accordance with the terms hereof; or
(ii) default in the payment of any installment when due of interest upon on any Security of such SeriesNote in accordance with the terms hereof, or any Additional Amounts payable with respect thereto, as and when such interest becomes or such Additional Amounts become due and payable, and continuance of such which default continues for a period of 30 days10 calendar days after the due date of such payment; or
(biii) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of the property of the Issuer or ordering the winding up or liquidation of the affairs of the Issuer, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iiiv) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itIssuer, or the filing by the Company, the Guarantor or Issuer shall make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(v) an event of default occurs under any Senior Debt, which results in the acceleration of such indebtedness prior to its express maturity, and the principal amount of any such indebtedness, together with the principal amount of any other indebtedness of which the maturity has been so accelerated, aggregates to $5.0 million or more; or
(vi) the Issuer shall fail to perform its obligations under the Registration Rights Agreement and such failure continues for the lesser of (i) any other Event 30 calendar days or (ii) 5 days after a registration statement is to be filed by Issuer or the effective date of Default provided a registration statement, as applicable, in any supplemental indenture or Board Resolution under which such Series either case after notice thereof by holders of Securities is issued or a majority in principal amount of the form of Security for such SeriesNotes; then then, and in each and every such case (other than an Event case, the holders of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunderNotes, by notice in writing to the Company (and to the Trustee if given by such Holders)Issuer, may declare the principal (or, in the case of Original Issue Discount Securities, such aggregate outstanding principal amount as may be determined in accordance of the Notes, together with the terms thereof) of all the Securities of such Series accrued interest thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of . In such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) aboveevent, the principal Issuer shall pay each holder of all Securities of a Note the Prepayment Price for such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionNote, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance together with the terms thereof) shall have been so declared due and payableaccrued interest thereon, and if recission would not conflict with any judgment or decree the Prepayment Notice Date for purposes of a court of competent jurisdiction, calculating the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient Prepayment Price will be deemed to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to be the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonIssuer.
Appears in 1 contract
Samples: Note Agreement (Unilab Corp /De/)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, on the Securities as and when such interest the same becomes or such Additional Amounts become due and payable, and the continuance of such default for a period of 30 15 calendar days; or
or (b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon acceleration or redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
or (c) failure on the part of the Company or the Guarantor, as the case may be, any Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or Issuer contained in the Guarantor Securities, in this Indenture, as in the case may beSubscription Agreement, in any of the Collateral Agreements, in the Securities Funding Note, the Funding Collateral Agreements or any related documents, and the continuance of such Series, or in this Indenture contained and relating to such Series, failure for a period of 60 15 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Event of Default” " hereunder shall have been and demanding that the Issuers remedy the same, is given to the Company or the Guarantor, as the case may be, Issuers by the Trustee for the Securities of such Series, or to the Company, the Guarantor Issuers and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Value Partners LTD /Tx/)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events events (each, an "Event of Default") (whatever the reason for such Event of Default (unless and whether it is either inapplicable shall be voluntary or involuntary or be effected by operation of law or pursuant to a particular Series any judgment, decree or it is specifically deleted from order of any court or modified in the instrument establishing such Series and the form any order, rule or regulation of Security for such Seriesany administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) a. default in the payment of (i) interest on any installment of interest upon any Security of such Seriesthe Debentures, which default shall not have been cured within fifteen (15) Business Days following the applicable Interest Payment Date, or (ii) the principal of any Additional Amounts payable Debenture, with respect thereto, to each of (i) and (ii) as and when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts same shall become due and payable either at their Maturitymaturity, upon any redemption (for any sinking fund payment or otherwise), by declaration conversion or otherwise; or
(c) b. failure on the part of the Company or the Guarantor, as the case may be, to duly to observe or perform any other of the covenants or agreements on the part of the Company (or the Guarantor making by the Company of any announcement, statement or threat that it does not intend to honor the obligations described in this Indenture, as the case may be, in the Securities of such Series, or paragraph) contained in this Indenture contained and relating to such SeriesDebenture, the Purchase Agreement, the Purchases Agreement Amendment or the Registration Rights Agreement for a period of 60 days ten (10) Business Days (other than with respect to an announcement, statement or threat) after the earlier of (x) the date on which any officer of the Company shall have obtained actual knowledge of such failure (or such announcement, statement or threat) or (y) the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have thereof has been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Holder; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by c. a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor Company or any of its Designated Subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or any of its Subsidiaries or for any substantial part of the property of the Company or any of its Subsidiaries or ordering the winding up or liquidation of the affairs of the Company or any of its Subsidiaries, and such decree or order shall remain unstayed and in effect for a period of 60 sixty (60) consecutive days; or
(ii) a decree or order adjudging d. the Company, the Guarantor Company or any of its Designated Subsidiaries to be insolventshall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Company or any of its Designated Subsidiaries of or for any substantial part of the property of the Company, the Guarantor Company or any of its Designated Subsidiaries Subsidiaries, or ordering the winding up or liquidation of the affairs of the Company, the Guarantor Company or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or Subsidiaries shall make any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, ; or
e. any representation or the taking of corporate action warranty made by the Company, Company in the Guarantor Purchase Agreement or Purchase Agreement Amendment shall prove to have been incorrect in any of its Designated Subsidiaries in furtherance of any such actionmaterial respect when made; or
(iA) any other Event of Default provided in any supplemental indenture or Board Resolution under a Registration Statement on Form S-3 for the Underlying Shares (which such Series of Securities is issued or in has been filed by the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (gCompany) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied amended to, among other items, include the Underlying Shares issuable hereunder, and filed with the Commission on or waivedprior to the earlier of (i) twenty (20) Business Days following the date that a majority of the shareholders of the Company approve the Reorganization or (ii) April 27, unless 2001, or (B) the principal Company shall fail to respond as promptly as practicable, but in no event later that ten (10) Business Days, to any comments received from the Commission regarding such Registration Statement, as amended, or (C) after its initial effectiveness, such Registration Statement lapses in effect or sales of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Registrable Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, as defined in the case Registration Rights Agreement) otherwise cannot be made thereunder (whether by reason of Original Issue Discount Securities, such principal amount as may be determined the Company's failure to amend or supplement the prospectus included therein in accordance with the terms thereofRegistration Rights Agreement or otherwise) of all the Securities of such Series to be due and payable immediatelyfor more than forty-five (45) consecutive days or ninety (90) calendar days in any twelve (12) month period, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided in the Registration Rights Agreement and except as a result of a Change of Control transaction with a privately-held company which does not otherwise result in an Event of Default; or
g. a Change of Control shall occur and the obligations of the Company under this Debenture shall not have been fully assumed by the controlling entity or otherwise discharged or accounted for; or
h. the Company fails to use its reasonable best efforts to cause its transfer agent to promptly deliver shares of Common Stock after the Holder delivers a Notice of Conversion pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) 4.2 hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.;
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following events ("Events of Default Default") (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment when due of any installment of interest upon any Security of such Series, all or any Additional Amounts payable with respect theretopart of the principal of or interest on the Note, as and when such interest becomes or such Additional Amounts become due and payable, and continuance of such default which failure to pay continues for a period of 30 days10 calendar days after the due date of such payment; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of the property of the Issuer or ordering the winding up or liquidation of the affairs of the Issuer, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iic) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itIssuer, or the filing by the Company, the Guarantor or Issuer shall make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(id) any other Event the Issuer shall fail to comply with the covenant contained in Section 3.2 of this Note; or
(e) a Senior Debt Default provided (as described below in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such SeriesSection 6.2(b)) shall have occurred; then then, and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunderHolder, by notice in writing to the Company (and to the Trustee if given by such Holders)Issuer, may declare the principal (or, in aggregate Accreted Amount of the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series Note to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Convertible Note (Unilab Corp /De/)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Event of Default" with respect to the Securities, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of such Series, all or any Additional Amounts part of the amounts payable with in respect thereto, of any of the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 dayspayable at the Issuance Date; or
(b) default in the payment performance, or breach, of any covenant or warranty of the principal Buyer in respect of the Securities (other than a covenant or any premium on any Security warranty in respect of the Securities, a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), and continuance of such Series, default or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, breach for a period of 60 forty-five (45) days after the date on which written notice specifying such failure and requiring the Company there has been given, by registered or the Guarantor, as the case may becertified mail, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, Buyer by the Trustee for the Securities of such Series, or to the Company, the Guarantor Buyer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
fifty percent (d50%) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such SeriesSecurities, a written notice specifying such event of default or breach and requiring the Company or the Guarantor to cause such acceleration it to be rescinded or annulled or to cause such Indebtedness to be discharged remedied and stating that such notice is a “"Notice of Default” hereunder in accordance with Section 11.4" hereunder; or
(ec) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Buyer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Buyer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 sixty (60) consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(hd) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Buyer shall commence a voluntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or of a voluntary proceeding seeking to be adjudicated insolvent hereafter in effect, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or an order for relief in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable such law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official official) of the Company, the Guarantor Buyer or any of its Designated Subsidiaries of for any substantial part of the property of the Companyits property, the Guarantor or make any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other . If an Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities described above occurs and is issued or in the form of Security for such Series; then continuing, then, and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waivedcase, unless all of the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Trustee upon the written request of Holders of not less than 25% in aggregate principal amount at Maturity fifty percent (50%) of the Securities of such Series then Outstanding hereunder, hereunder by notice in writing to the Company Buyer (and to the Trustee if given by such the Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon shall bring suit for any such declaration the same shall become and shall be immediately amounts then due and payable, anything in this Indenture or in which amounts shall bear interest at the Securities of such Series contained Default Interest Rate until payment is made to the contrary notwithstandingTrustee. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) Trustee shall have been so declared due and payablebegun such suit, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Buyer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series amounts which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, amount at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) Default Interest Rate to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, incurred and all advances made, by the Trustee, its agents, attorneys and counsel and if any and all defaults Events of Default under this IndentureAgreement, other than the nonpayment non-payment of the principal of Securities of such Series amounts which shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of such Series then Outstanding, by written notice to the Company, Buyer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults and rescind and annul such declaration and its consequences; with respect to the Securities, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonthereof.
Appears in 1 contract
Samples: Contingent Value Rights Agreement (Hewlett Packard Co)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities, that is to say:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking Company shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of corporate action by a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or the Company shall commence any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency, reorganization, arrangement, or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this subsection (d) called "Proceeding"); or if there shall be commenced against the Company any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Guarantor Company or any substantial portion of the property of the Company shall be appointed and shall not be discharged within a period of 60 days; or the Company by any act shall indicate consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another company or the transfer of its Designated Subsidiaries assets as a whole, or substantially as a whole, to such other company as provided in furtherance Section 9.1 shall not make the rights and remedies herein enforceable under this subsection (d) of any Section 5.1 if such actionlast-mentioned company shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.1; or
(ie) any other Event of Default provided in any supplemental indenture the Supplemental Indenture or resolution of the Board Resolution of Directors under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency currency or currency unit in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 2.5 for the Securities of such Series and except as provided in Section 2.12(b2.14(b), (de) and (ef) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity40 maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, remedied then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following events ("Events of Default Default") (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, all or any Additional Amounts payable with respect thereto, as and when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment part of the principal of or any premium interest on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(cb) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company Issuer contained in this Security or the Guarantor in this Indenture, as Purchase Agreement or the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, Registration Rights Agreement for a period of 60 days five (5) Business Days after the date on which any officer of the Issuer shall have obtained actual knowledge of such failure or after written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have thereof has been given to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders holders of at least 25% a majority in aggregate principal amount at Maturity of the Securities then outstanding; or
(c) there shall have occurred with respect to any issue or issues of Debt of the Issuer and/or one or more Subsidiaries having an outstanding principal amount of $1,000,000 or more in the aggregate for all such issues of all such Persons, whether such Debt now exists or shall hereafter be created, an event of default which has caused the holder thereof to declare such debt to be due and payable prior to its stated maturity and such Debt has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such Series at the time Outstanding in accordance with Section 11.4acceleration; or
(d) if any event of default as defined in any mortgage, indenture a judgment or instrument under which there may be issued, or order (not covered by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in insurance) for the payment of more than $30,000,000 in principal amount money shall be rendered against the Issuer or any Subsidiary of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount Issuer in excess of $30,000,000 becoming 500,000 in the aggregate for all such judgments or being declared due and payable prior to the date on which it would otherwise become due and payableorders against all such Persons (treating any deductibles, and such default self insurance or retention as not so covered) that shall not be cured discharged, and all such judgments and orders remain outstanding and there shall be any period of 30 consecutive days following entry of the judgment or order in excess of $500,000 or the judgment or order which causes the aggregate amount described above to exceed $500,000 during which a stay of enforcement of such acceleration judgment or order, by reason of a pending appeal or otherwise, shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4effect; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor Issuer or any of its Designated Subsidiaries subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or any of its Subsidiaries or for any substantial part of the property of the Issuer or any of its Subsidiaries or ordering the winding up or liquidation of the affairs of the Issuer or any of its Subsidiaries, and such decree or order shall remain unstayed and in effect for a period of 60 30 consecutive days; or
(iif) a decree or order adjudging the Company, the Guarantor Issuer or any of its Designated Subsidiaries to be insolventshall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of or for any substantial part of the property of the Company, the Guarantor Issuer or any of its Designated Subsidiaries Subsidiaries, or ordering the winding up or liquidation of the affairs of the Company, the Guarantor Issuer or any of its Designated SubsidiariesSubsidiaries shall make any general assignment for the benefit of creditors; or
(g) any representation, warranty, certification or statement made by the Issuer in the Purchase Agreement or in any certificate, financial statement or other document delivered pursuant to the Purchase Agreement shall prove to have been incorrect in any material respect when made; or
(h) the commencement by Common Stock shall be delisted from Nasdaq or shall be suspended from trading on Nasdaq without resuming trading and/or being relisted thereon or on a Subsequent Market or having such suspension lifted, as the Companycase may be, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such actionwithin three Business Days; or
(i) (X) a Registration Statement for the Registrable Securities (as defined in the Registration Rights Agreement) shall not have been declared effective by the Securities and Exchange Commission (the "SEC") on or prior to the 180th day after the Closing Date (as defined in the Purchase Agreement), or (Y) the Issuer fails to obtain the effectiveness of any other Event additional Registration Statement (required to be filed pursuant to Section 3(b) of Default provided the Registration Rights Agreement) within ninety (90) days after the Registration Trigger Date (as defined in the Registration Rights Agreement), or (Z) any such Registration Statement, after its initial effectiveness and during the Registration Period (as defined in the Registration Rights Agreement), lapses in effect or sales of all of the Registrable Securities (as defined in the Registration Rights Agreement, the "REGISTRABLE SECURITIES") otherwise cannot be made thereunder (whether by reason of the Issuer's failure to amend or supplement the prospectus included therein in accordance with the Registration Rights Agreement, the Issuer's failure to file and obtain effectiveness with the SEC of an additional Registration Statement required to be filed pursuant to Section 3(b) of the Registration Rights Agreement or otherwise) for more than thirty (30) consecutive days or more than sixty (60) days in any supplemental indenture or Board Resolution under which twelve (12) month period after such Series Registration Statement becomes effective, excluding for purposes of Securities is issued or clause (Z) above only, days during the Allowed Delay period (as defined in the form Registration Rights Agreement) and excluding for purposes of Security for such Seriesclauses (X) and (Y) above only, a delay caused by Purchaser's failure to comply with Sections 3(h) and 4(a) of the Registration Rights Agreement; then and or
(j) a Change of Control shall occur; or
(k) the Issuer shall fail to obtain the Authorization Approval contemplated by Section 3.17 of the Purchase Agreement prior to March 31, 2000. then, in each and every such case (other than an Event of Default under clause (gspecified in Section 3.1(e) and (h) aboveor 3.1(f)hereof), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such Holders"Acceleration Notice"), a Holder may declare the principal (or, in the case of Original Issue Discount Securities, such entire principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and any interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to If an Event of Default described under clauses (gspecified in Section 3.1(e) and (hor 3.1(f) aboveoccurs, the principal of all and any accrued interest on the Securities of such Series shall become and be immediately due and payable without any declaration or other act by on the Trustee or part of any Holder. In the Holders. This provisionevent that the Issuer shall not have promptly, howeverbut in any event within five (5) Business Days of receipt of an Acceleration Notice, is subject paid the Holder the amount specified herein as due and payable in respect of such Event of Default, the Conversion Price shall automatically be adjusted to equal the condition that if at any time after the principal average Per Share Market Value of the Securities of such Series Common Stock during the preceding thirty (or30) consecutive Trading Days; provided, in that the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest Per Share Market Value is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other lower than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonConversion Price.
Appears in 1 contract
Samples: Convertible Debenture Agreement (Geron Corporation)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days, whether or not such payment is prohibited by Article XII; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable payable, either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise, whether or not such payment is prohibited by Article XII; or
(ci) failure on the part of the Company Issuer to observe or perform any of the Guarantor, as covenants or agreements described in Section 3.11 or Section 8.1 or (ii) failure on the case may be, part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, or contained in this Indenture contained and relating to such Series, for a period of 60 30 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 40% (25% on and after the Distribution Effective Date) in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, with respect to any Indebtedness of the Company, the Guarantor Issuer or any Subsidiary, as a result of its Designated Subsidiaries (including, in each case, an Event which the maturity of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurredhas been accelerated prior to its stated maturity, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at exceeds $10.0 million in the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4aggregate; or
(e) any final judgments rendered against the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge Issuer and/or any uninsured judgment or court order for the payment of money Significant Subsidiary aggregating in excess of $30,000,000, which is not stayed on appeal 10.0 million and (x) any creditor has commenced any enforcement proceeding upon any such judgment and (y) any such judgment remains undischarged or is not otherwise being appropriately contested in good faithunstayed for 60 days; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or filing against the Guarantor Issuer or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by Significant Subsidiary of a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in petition commencing an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law and such decree now or order shall remain unstayed and hereafter in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolventeffect, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of Significant Subsidiary or for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries Issuer or ordering the winding up or liquidation of the affairs of the Companyits affairs, the Guarantor and such petition shall not be dismissed or any of its Designated Subsidiariesstayed pending appeal within 60 days; or
(hg) the commencement by the Company, the Guarantor Issuer or any of its Designated Subsidiaries of Significant Subsidiary shall commence a voluntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or of a voluntary proceeding seeking to be adjudicated insolvent hereafter in effect, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or an order for relief in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable such law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of Significant Subsidiary or for any substantial part of the property of the CompanyIssuer, or the Guarantor Issuer or any of its Designated Subsidiaries or the making by the Company, the Guarantor or Significant Subsidiary shall make any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Companythen, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (gwith respect to the Issuer specified in Section 4.1(f) and (hor 4.1(g) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders holders of not less than at least 40% (25% on and after the Distribution Effective Date) in aggregate principal amount at Maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company (Issuer, or to the Issuer and to the Trustee if given in the event of action taken by such Holdersthe holders of the requisite percentage of the Securities, specifying the respective Event of Default and that it is a "Notice of Acceleration" (the "Acceleration Notice"), may declare the entire principal (oramount, in together with interest accrued and unpaid on the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture ; provided the Trustee shall not be charged with knowledge of any default or in the Securities on Event of such Series contained Default under Section 4.1(d) or (e) above unless written notice thereof shall have been given to the contrary notwithstandingTrustee by the Issuer or a Representative of any issue of Indebtedness. With respect to If an Event of Default described under clauses (gwith respect to the Issuer specified in Section 4.1(f) and (hor 4.1(g) aboveoccurs, the principal of all amount together with interest accrued and unpaid on the Securities of such Series shall become and be immediately due and payable without any declaration or other act by on the part of the Trustee or the Holdersany Securityholder. This provision, however, The declaration of acceleration is subject to the condition that if if, at any time after the principal amount of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series (or, interest specified in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its their respective agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults and Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein -- then and in every such case the Holders holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstandingoutstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Ich Corp /De/)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturity, upon redemption (for any sinking fund payment or otherwise)maturity, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or[INTENTIONALLY DELETED]
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors. Then, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waivedcase, unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series (or, interest specified in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein--then and in every such case the Holders holders of at least a majority in the aggregate principal amount at Maturity of the Securities of such Series then Outstandingoutstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturity, upon redemption (for any sinking fund payment or otherwise)maturity, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument evidencing or under which there may be issued, or by which there may be secured or evidenced, any Indebtedness the Issuer has at the date of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists this Indenture or shall hereafter be created or incurredhave outstanding at least $25,000,000 aggregate principal amount of indebtedness for borrowed money, shall happen and be continuing and such indebtedness shall consist of default in have been accelerated so that the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) same shall be or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared become due and payable prior to the date on which it the same would otherwise have become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 ten days after there notice thereof shall have been given to the Company and the Guarantor Issuer by the Trustee (if such event be known to it), or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity maturity of the Outstanding Securities of such Series, a written notice specifying at the time outstanding; provided that if such event of default under such indenture or instrument shall be remedied or cured by the Issuer or waived by the holder of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without further action upon the part of either the Trustee or any of the Securityholders, and requiring provided further that, subject to the Company provisions of Sections 5.1 and 5.2, the Trustee shall not be charged with knowledge of any such default unless written notice thereof shall have been given to the Trustee by the Issuer, by the holder or an agent of the Guarantor to cause holder of any such acceleration to be rescinded indebtedness, by the trustee then acting under any indenture or annulled other instrument under which such default shall have occurred, or to cause such Indebtedness to be discharged and stating that such notice is a “Notice by the holders of Default” hereunder not less than 25% in accordance with Section 11.4the aggregate principal amount at maturity of the Securities at the time outstanding; or
(e) the Company repudiation by the Issuer of any of its obligations under the Security Documents or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for unenforceability of the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faithSecurity Documents against the Issuer; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iig) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors. Then, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waivedcase, unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders holders of not less than 25% in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series Securities, the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, interest at the same rate borne by as the Securities rate of such Series (or, interest specified in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein--then and in every such case the Holders holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstandingoutstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Weirton Steel Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the events or conditions specified in any of the following Events of Default clauses (a) - (f) (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to Securities of any Series (any such event or condition, an "Event of Securities:Default"):
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event Subsidiary Guarantee of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Subsidiary Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior relating to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration Series ceases to be rescinded or annulled or to cause such Indebtedness to be discharged in full force and stating that such notice is a “Notice of Default” hereunder effect (other than in accordance with Section 11.4the terms of such Subsidiary Guarantee) or a Subsidiary Guarantor denies or disaffirms its obligations under its Subsidiary Guarantee (other than by reason of a release of a Subsidiary Guarantor from its Subsidiary Guarantee in accordance with the terms of such Subsidiary Guarantee); or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking Company shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of corporate action by a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or the Company shall commence any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency, reorganization, arrangement, or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this subsection (d) called "Proceeding"); or if there shall be commenced against the Company any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Guarantor Company or any substantial portion of the property of the Company shall be appointed and shall not be discharged within a period of 60 days; or the Company by any act shall indicate consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another company or the transfer of its Designated Subsidiaries assets as a whole, or substantially as a whole, to such other company as provided in furtherance Section 9.1 shall not make the rights and remedies herein enforceable under this subsection (d) of any Section 5.1 if such actionlast-mentioned company shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.1; or
(if) any other Event of Default provided in any supplemental indenture the Supplemental Indenture or resolution of the Board Resolution of Directors under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency currency or currency unit in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (de) and (ef) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturitymaturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults Events of Default under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, remedied then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Joy Global Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of failure to pay duly and punctually any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, on the Securities as and when such interest the same becomes or such Additional Amounts become due and payable, and the continuance of such default for a period of 30 thirty (30) calendar days; or
(b) default in the payment failure to pay duly and punctually all or any part of the principal of or any premium on any Security of such Seriesthe Securities, or the Repurchase Price of any Additional Amounts payable with respect theretoSecurity, as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable payable, either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration acceleration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or Issuer contained in the Guarantor Securities (other than as provided for in (a) and (b) above), in this Indenture, as the case may be, in the Securities Subscription Agreement, or any related documents, and the continuance of such Series, or in this Indenture contained and relating to such Series, failure for a period of 60 30 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Event of Default” " hereunder shall have been and demanding that the Issuer remedy the same, is given to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such Series, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 2550% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in under any mortgage, indenture or instrument under which there may be issued, issued or by which there may be secured or evidenced, evidenced any Indebtedness of for money borrowed by the Company, the Guarantor Issuer or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in which is Guaranteed by the Issuer or any of its Subsidiaries), which default is caused by a failure to pay due principal or interest on such Indebtedness after any applicable grace period (a "Payment Default"), and the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) under which there has been and is continuing a Payment Default, aggregates $500,000 or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4more; or
(e) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company Issuer or the Guarantor shall fail within 60 days to pay, bond any of its Subsidiaries (or otherwise discharge any uninsured judgment or court order for the payment of money in excess which is Guaranteed by the Issuer or any of $30,000,000its Subsidiaries), which default results in the acceleration of such Indebtedness prior to its express maturity and the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been and is continuing a Payment Default or the maturity of which has been so accelerated and not stayed on appeal rescinded, aggregates $500,000 or is not otherwise being appropriately contested in good faithmore; or
(f) except as permitted failure by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor Issuer or any Person acting on of its behalfSubsidiaries to pay final judgments (other than any judgment as to which a reputable insurance the Issuer has accepted coverage without a reservation of rights) aggregating in excess of $500,000, shall deny which judgments are not stayed or disaffirm the Guarantor’s obligations under the Guaranteedischarged within 30 days after their entry; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor Issuer or any of its Designated Subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law and such decree now or order shall remain unstayed and hereafter in effect for effect, or appointing a period receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor Issuer or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition for any substantial part of the Company, property of the Guarantor Issuer or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Issuer or any of its Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 30 consecutive days; or
(iiih) the Issuer or any of its Subsidiaries shall commence a final and non-appealable voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order appointing for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of or for any substantial part of the property of the Company, the Guarantor Issuer or any of its Designated Subsidiaries Subsidiaries, or ordering the winding up or liquidation of the affairs of the Company, the Guarantor Issuer or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or Subsidiaries shall make any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided the Issuer does not pay, or shall be unable to pay, or shall admit in any supplemental indenture or Board Resolution under which writing its inability to pay its debts as such Series of Securities is issued or in the form of Security for such Seriesdebts become due; then then, and in each and every such case (other than an Event of Default under specified in clause (g) and or (h) aboveabove relating to the Issuer), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 2550% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders) (the "Acceleration Notice"), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the accrued interest thereon to be due and payable immediately, and upon any such declaration immediately (the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding"Acceleration Date"). With respect to If an Event of Default described under clauses specified in clause (g) and or (h) aboveabove relating to the Issuer occurs, all the principal of all Securities of such Series and the accrued interest thereon shall become be immediately due and payable without any declaration or other act by on the part of the Trustee or the Holdersany Securityholder. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of If a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided notice pursuant to this Section 2.3 5.1 should be given or sent, then, for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults purposes under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such accelerationIssuer, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for shall be deemed to have received a Senior Default Notice simultaneously with the Securities giving or sending of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonthat notice hereunder.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Except as may be otherwise provided pursuant to Section 2.03 for Securities of any series, “Event of Default” with respect to Securities of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series (other than a covenant or warranty in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Section specifically dealt with) or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series at the time Outstanding in accordance with Section 11.4all series affected thereby; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iie) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(if) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Series; series. If an Event of Default described in clauses 5.01(a), 5.01(b), 5.01(c) or 5.01(f) (if the Event of Default under clause 5.01(c) or 5.01(f), as the case may be, is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of each such Series affected series then Outstanding hereunder, hereunder (voting as a single class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance the terms of such series) of all Securities of all such affected series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. If an Event of Default described in clause 5.01(c) or 5.01(f) (if the Event of Default under clause 5.01(c) or 5.01(f), as the case may be, is with respect to all series of Securities then Outstanding), 5.01(d) or 5.01(e) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of such Series then Outstanding, and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company Issuer or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series series (or of all the Securities, as the case may be) and the principal of any and all Securities of each such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of each such series (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of each such Series series, or of all the Securities, in each case voting as a single class, then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case If one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body or otherwise) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of all or any part of the principal of, or premium, if any, on, any of the Notes as and when the same shall become due and payable either at maturity, upon any redemption or required repurchase, by declaration of acceleration or otherwise; or
(b) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument of the Company under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the CompanyCompany that has resulted in the acceleration of such Indebtedness, or any default occurring in payment of any such Indebtedness at final maturity (and after the Guarantor expiration of any applicable grace periods), other than such Indebtedness (i) which is payable solely out of the property or assets of a partnership, joint venture or similar entity of which the Company or any of its Designated Subsidiaries or Affiliates is a participant, or which is secured by a lien on the property or assets owned or held by such entity, without further recourse to or liability of the Company, or (includingii) the principal of, in each caseand interest on which, an Event when added to the principal of Default and interest on all other such Indebtedness (exclusive of Indebtedness under clause (i) above), does not exceed $20,000,000; or
(d) failure on the part of the Company duly to observe or perform any other Series of Securities), whether such Indebtedness now exists the covenants or shall hereafter be created or incurred, shall happen and shall consist agreements on the part of default the Company in the payment Notes or in this Indenture and such failure continues for a period of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (90 days after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and payabledemanding that the Company remedy the same, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee Trustee, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring Notes at the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4time Outstanding; or
(e) the Company one or the Guarantor shall fail within 60 days to paymore final, bond nonappealable judgments, decrees or otherwise discharge orders of any uninsured judgment court, tribunal, arbitrator, administrative or court order other governmental body or similar entity for the payment of money shall be rendered against the Company or any of its properties in an aggregate amount in excess of $30,000,00020,000,000 (excluding the amount thereof covered by insurance) and such judgment, which is not stayed on appeal decree or is not otherwise order shall remain unvacated, undischarged and unstayed for more than 90 days, except while being appropriately contested in good faithfaith by appropriate proceedings; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Company in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect, or a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Company under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or for any substantial part of its property or ordering the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(hg) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Company shall commence a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect or of a voluntary any other case or proceeding seeking to be adjudicated insolvent a bankrupt or the insolvent, or consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable bankruptcysuch law, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency proceedings case or proceeding against itthe Company, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries Company of a petition or answer or consent seeking reorganization, arrangement, adjustment reorganization or composition of the Company, the Guarantor or any of its Designated Subsidiaries relief under any such applicable federal or state law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries Company to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee trustee, sequestrator or other similar official of the Company, the Guarantor Company or any of its Designated Subsidiaries of any substantial part of the property of the Companyits property, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries Company of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries Company in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied the Company specified in SECTION 4.1(F) or waived4.1(G) hereof), unless the principal amount of all Securities of such Series the Notes shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series Notes then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such HoldersNoteholders), may declare the principal (or, in the case of Original Issue Discount Securities, such entire principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series Notes and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) Notes shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interestinterest upon all the Notes and the principal and premium, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which Notes that shall have become due otherwise than by such acceleration (with interest upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the rate borne by the Securities of such Series (or, interest specified in the case of Original Issue Discount SecuritiesNotes, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its their respective agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurredincurred and all reasonable advances made by the Trustee and each predecessor Trustee except as a result of gross negligence or bad faith, and all advances made, by the Trustee, its agents, attorneys and counsel and if any and all defaults Events of Default under this Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which that shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series Notes then Outstanding, by written notice to the Company, Company and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults (except, unless theretofore cured, a default in payment of principal of, or premium, if any, or interest on, the Notes) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. If an Event of Default specified in SECTION 4.1(F) or 4.1(G) hereof occurs with respect to the Company, the principal of and accrued interest on the Notes shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Noteholder.
Appears in 1 contract
Samples: Indenture (Edison Mission Energy)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more An “Event of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing Default” occurs with respect to the Notes of any Series of Securitiesseries if:
(a) default the Company defaults in the payment of any installment of interest upon on any Security Note of such Series, or any Additional Amounts payable with respect thereto, as and series when such interest it becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 days;
(b) the Company defaults in the payment when due of the principal of, or premium, if any, on, any Note of such series;
(c) the Company defaults in the performance of or breaches any covenant or warranty of the Company in the Indenture or any Board Resolution, supplemental indenture or Officer’s Certificate with respect to such series and the related Guarantees (other than a covenant or warranty that has been included in the Indenture or Board Resolution, supplemental indenture or Officer’s Certificate solely for the benefit of a series of Notes other than that series), which default or breach continues uncured for a period of 90 days after (i) the Company receives written notice from the Trustee or (ii) the Company and the Trustee receive written notice from the Holders of not less than 25% in aggregate principal amount of the outstanding Notes of all series affected thereby;
(d) a Guarantee by a Subsidiary ceases to be in full force and effect (other than in accordance with the terms of such Guarantee) or a Guarantor that is a Subsidiary denies or disaffirms its obligations under its Guarantee (other than by reason of the termination of this Indenture or the release of any such Guarantee in accordance with this Indenture);
(e) the Company or any Guarantor:
(i) commences a voluntary case under applicable bankruptcy, insolvency or other similar law;
(ii) consents to the entry of an order for relief against it in an involuntary bankruptcy case;
(iii) applies for or consents to the appointment of any custodian, receiver, trustee, sequestrator, conservator, liquidator, rehabilitator or similar officer of it or for all or substantially all of its property and assets;
(iv) makes a general assignment for the benefit of its creditors; or
(bv) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts generally is unable to pay its debts as they become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; ordue;
(cf) failure on the part of an involuntary case or other proceeding is commenced against the Company or any Guarantor with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the Guarantorappointment of a trustee, as the case may bereceiver, duly to observe liquidator, custodian or perform other similar official of it or any other of the covenants or agreements on the substantial part of the Company its property, and such involuntary case or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained other proceeding remains undismissed and relating to such Series, unstayed for a period of 60 days after the date on which written notice specifying such failure and requiring consecutive days; or an order for relief is entered against the Company or any Guarantor under the Guarantorfederal bankruptcy laws as now or hereafter in effect; or
(g) the Company or a Subsidiary defaults on any Debt in excess of $100,000,000 principal amount that results in the acceleration of such Debt prior to its stated maturity, as if such Debt is not discharged, or such acceleration is not annulled, by the case may be, to remedy the same and stating that such end of a period of 30 days after written notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, Notes then outstanding. If an Event of Default under with respect to Notes of any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness series at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due time outstanding occurs and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case continuing (other than an Event of Default under clause referred to in Section 6.01(e) or (gf)) and then in every such case the Trustee (h) above), so long as only if a Responsible Officer of the Trustee has received written notice or has actual knowledge of such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series Default) or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities outstanding Notes of such Series then Outstanding hereunderthat series may declare the principal amount of and accrued and unpaid interest, if any, on all of the Notes of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to If an Event of Default described under clauses specified in Section 6.01(e) or (gf) and (h) aboveshall occur, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all Securities of such Series outstanding Notes shall ipso facto become and be immediately due and payable without any declaration or other act by on the part of the Trustee or the Holdersany Holder. This provision, however, is subject to the condition that if at At any time after such a declaration of acceleration with respect to any series has been made, the Holders of a majority in principal amount of the Securities outstanding Notes of that series, by written notice to the Company and the Trustee, may rescind and annul such Series declaration and its consequences if (or, in i) the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due rescission and payable, and if recission annulment would not conflict with any judgment or decree already rendered, (ii) if all existing Events of a court Default with respect to that series (except nonpayment of competent jurisdictionprincipal, interest or premium that has become due solely because of the acceleration) have been cured or waived and all sums paid or advanced by the Trustee hereunder and the reasonable compensation expenses and disbursements of the Trustee and its agents and counsel have been paid and (iii) if the Company has paid or the Guarantor shall pay or shall deposit deposited with the Trustee a sum sufficient to pay in (a) any overdue interest on the Currency in which the Securities Notes of such Series are payable series, (b) the principal amount of such series of Notes (except as otherwise provided pursuant to Section 2.3 for the Securities principal, interest or premium that has become due solely because of such Series and except as provided in Section 2.12(b), (dthe acceleration) and (ec) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such lawful and applicable, interest is enforceable under applicable law, upon on overdue installments of interest, interest at the rate borne by specified in the Securities Notes of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of series. No such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default Event of Default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Regal Rexnord Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case If one or more of the following events ("Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such SeriesDefault") shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, all or any Additional Amounts payable with respect thereto, as and when such part of the principal or interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period any of 30 daysthe Notes on their respective maturity dates; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the material covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Seriescontained herein, or in this Indenture contained and relating to such Series, the Note or Warrant (other than that set forth in clause (a) above) for a period of 60 thirty (30) days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Company remedy the same, shall have been given to the Company by registered or the Guarantorcertified mail, as the case may bereturn receipt requested, by or on behalf of the Trustee for the Securities of such Series, or Purchasers to the Company; or
(c) the Company shall fail to make any payment in respect of any debt when due or within any applicable grace period, where such failure continues and/or is not fully remedied within thirty (30) days or any event or condition shall occur which results in the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity acceleration of the Securities maturity of any debt or enables (or, with the giving of notice or lapse of time or both, would enable) the holder of such Series at debt or any person acting on such holder's behalf to accelerate the time Outstanding in accordance with Section 11.4maturity thereof; or
(d) if the Company pursuant to or within the meaning of any event bankruptcy law (i) commences a voluntary case or proceeding; (ii) consents to the entry of default as defined an order for relief against it in any mortgage, indenture an involuntary case or instrument under which there may be issued, proceeding; (iii) consents to the appointment of a custodian of it or by which there may be secured for all or evidenced, any Indebtedness of the Company, the Guarantor or any substantially all of its Designated Subsidiaries property; (including, iv) makes a general assignment for the benefit of its creditors; or (v) admits in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in writing its inability to pay its debts as the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise same become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4due; or
(e) a court of competent jurisdiction enters an order or decree under any bankruptcy law that (i) is for relief against the Company in an involuntary case; (ii) appoints a custodian of the Company or the Guarantor shall fail within 60 days to pay, bond for all or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part substantially all of the property of the Company, ; or (iii) orders the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor and such order or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then remains unstayed and in each and every such case effect for sixty (other than an Event of Default under clause (g60) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.days;
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default the Issuer defaults in the payment of any installment (i) the principal of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, as and the Note when such interest the same becomes or such Additional Amounts become due and payablepayable at maturity, upon acceleration or otherwise or of (ii) the interest on the Note when the same becomes due and continuance of payable and such default continues for a period of 30 days; or;
(b) default the Issuer defaults in the payment performance of or breaches any covenants or agreements of the principal Issuer (other than Sections 3.1, 3.2, 3.3 and 3.6 below) in this Note and such default or breach continues for a period of or any premium on any Security 30 consecutive days after written notice to the Issuer by the Holder of such Series, default or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; orbreach;
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of the property of the Issuer or ordering the winding up or liquidation of the affairs of the Issuer, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or;
(iid) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving the Issuer shall consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itIssuer, or the filing by the Company, the Guarantor or Issuer shall make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(ie) there shall be a default under any other Event Senior Debt of Default provided in the Issuer or any supplemental Subsidiary or under any mortgage, indenture or Board Resolution other instrument under which such Series of Securities is there may be issued or in by which there may be secured or evidenced any Senior Debt of the form Issuer or any Subsidiary and the holder of Security for such Series; then any Senior Debt causes any Senior Debt to become due prior to its stated maturity, then, and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series and accrued interest on the Note shall have already become and be immediately due and payable, either the Trustee for such Series or the Holders payable upon written notice of not less than holders of at least 25% in aggregate principal amount at Maturity of the Securities Notes then outstanding but shall no longer be immediately due and payable and shall not be deemed to have become due and payable if the default or Event of Default resulting in such Series then Outstanding hereunder, acceleration is waived by notice in writing to the Company Holder. Immediately upon the occurrence of any Event of Default (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined which has not been waived in accordance with the terms thereofprovisions of this Note) of all or upon failure to pay this Note at maturity, the Securities of such Series to be due and payable immediatelyHolder, and upon without any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained notice to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) aboveIssuer, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act which notice is expressly waived by the Trustee or the Holders. This provisionIssuer, howevermay proceed to protect, is subject to the condition that if at any time after the principal of the Securities of such Series (orenforce, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due exercise and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of pursue any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, rights and remedies available to the extent that payment of such interest is enforceable Holder under applicable lawthis Note and any other agreement or instrument, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then rights and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice remedies available to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver Holder at law or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonin equity.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, on the Securities as and when such interest the same becomes or such Additional Amounts become due and payable, and the continuance of such default for a period of 30 15 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon acceleration or redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or Issuer contained in the Guarantor Securities, in this Indenture, as or any of the case may be, in Collateral Agreements and the Securities continuance of such Series, or in this Indenture contained and relating to such Series, failure for a period of 60 15 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Event of Default” " hereunder shall have been and demanding that the Issuer remedy the same, is given to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such Series, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Outstanding; or
(d) if any event failure on the part of the Issuer to appoint a Trustee within 5 days of a written request of the holders of 25% in principal amount of the securities to appoint a Trustee; or
(e) default as defined in under any mortgage, indenture or instrument under which there may be issued, issued or by which there may be secured or evidenced, evidenced any Indebtedness of the Companyfor money borrowed by TWG, the Guarantor TWG Louisiana or any Subsidiaries of its Designated Subsidiaries TWG Louisiana (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in which is Guaranteed by TWG, TWG Louisiana or any Subsidiaries of TWG Louisiana), which default is caused by a failure to pay due principal or interest on such Indebtedness after any applicable grace period (a "Payment Default"), and the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) under which there has been and is continuing a Payment Default, aggregates $150,000 or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faithmore; or
(f) except as permitted default under any mortgage, indenture or instrument under which there may be issued or by this Indenturewhich there may be secured or evidenced any Indebtedness for money borrowed by TWG, the Guarantee shall be held in TWG Louisiana or any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect Subsidiaries of TWG Louisiana (or the Guarantor payment of which is Guaranteed by TWG, TWG Louisiana or any Person acting on Subsidiaries TWG Louisiana), which default results in the acceleration of such Indebtedness prior to its behalfexpress maturity and the principal amount of any such Indebtedness, shall deny together with the principal amount of any other such Indebtedness under which there has been and is continuing a Payment Default or disaffirm the Guarantor’s obligations under the Guaranteematurity of which has been so accelerated and not rescinded, aggregates $150,000 or more; or
(g) the entry failure by TWG, TWG Louisiana or any Subsidiaries of TWG Louisiana to pay final judgments (other than any judgment as to which a reputable insurance company has accepted coverage without a reservation of rights) aggregating in excess of $150,000, which judgments are not stayed or discharged within 15 days after their entry; or
(h) a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the CompanyTWG, the Guarantor TWG Louisiana or any Subsidiaries of its Designated Subsidiaries TWG Louisiana in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of TWG, TWG Louisiana or any Subsidiaries of TWG Louisiana or for any substantial part of the property of TWG, TWG Louisiana or any Subsidiaries of TWG Louisiana or ordering the winding up or liquidation of the affairs of TWG, TWG Louisiana or any Subsidiaries of TWG Louisiana and such decree or order shall remain unstayed and in effect for a period of 60 15 consecutive days; or
(iii) a decree or order adjudging the CompanyTWG, the Guarantor TWG Louisiana or any Subsidiaries of its Designated Subsidiaries to be insolventTWG Louisiana shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the CompanyTWG, the Guarantor TWG Louisiana or any of its Designated Subsidiaries of TWG Louisiana or for any substantial part of the property of the CompanyTWG, the Guarantor TWG Louisiana or any Subsidiaries of its Designated Subsidiaries TWG Louisiana, or ordering the winding up or liquidation TWG, of the affairs of the Company, the Guarantor TWG Louisiana or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under TWG Louisiana shall make any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors;
(j) indictment of any officer or Key Employee of TWG, or the taking of corporate action by the Company, the Guarantor TWG Louisiana or any subsidiaries of its Designated Subsidiaries in furtherance TWG Louisiana by any governmental authority;
(k) fraud by an officer or Key Employee of TWG, TWG Louisiana or any such actionsubsidiaries of TWG Louisiana; or
(il) any other Event of Default provided the Issuer does not pay, or shall be unable to pay, or shall admit in any supplemental indenture or Board Resolution under which writing its inability to pay its debts as such Series of Securities is issued or in the form of Security for such Series; then debts become due. then, and in each and every such case (other than an Event of Default under specified in clause (g) and (h) aboveor (i) above relating to the Issuer), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 2550% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders) (the "Acceleration Notice"), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the debt evidenced by the Securities of such Series to be due and payable immediately, and upon any such declaration immediately (the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding"Acceleration Date"). With respect to If an Event of Default described under clauses (g) and specified in clause (h) aboveor (i) above relating to the Issuer occurs, all the principal of all Securities of such Series and the accrued interest thereon shall become be immediately due and payable without any declaration or other act by on the part of the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonSecurityholder.
Appears in 1 contract
Samples: Indenture (Trans World Gaming Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following events (“Events of Default Default”) (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(ai) default in the payment of any installment of interest upon any Security of such Series, all or any Additional Amounts payable with respect thereto, part of the Balance of this Note as and when such interest becomes the Balance or such Additional Amounts part thereof shall become due and payable; provided, however, that such failure shall not result in an Event of Default to the extent it is has not occurred more than once during the term of this Note and continuance of such default for it is corrected by Buyer within a period of 30 15 business days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(cii) failure on the part of the Company Buyer or the GuarantorRNK, as the case may be, Inc. duly to observe or perform in all material respects any other of the covenants or agreements on the part of either the Company Buyer or the Guarantor in this IndentureRNK, as the case may be, Inc. contained in the Securities of such Series, or in this Indenture contained and relating to such Series, Transaction Documents (other than those covered by clause (i) above) for a period of 60 15 business days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company and demanding that Buyer or the GuarantorRNK, Inc., as the case may be, remedy the same, shall have been given by the Trustee for the Securities of such SeriesNoteholder by registered or certified mail, or return receipt requested, to the CompanyBuyer or RNK, Inc., as the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4case may be; or
(diii) if the occurrence of any event or condition which results in (i) the acceleration of default as defined the maturity of any material indebtedness of the Buyer or RNK, Inc. (any indebtedness in excess of $500,000 shall be deemed material) or, (ii) enables or, with the giving of notice or lapse of time or both, would enable the holder of any such monetary obligation or any Person acting on such holder’s behalf to accelerate the maturity thereof; or
(iv) any representation, warranty or statement of fact made by Buyer in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor Transaction Documents or any of its Designated Subsidiaries (includingother agreement, schedule or otherwise in each caseconnection with the transactions contemplated thereby being, when made or deemed to have been made, false or misleading in any material respect; provided, however, that such failure shall not result in an Event of Default under any other Series to the extent it is corrected by Buyer within a period of Securities), whether 15 business days (5 business days if such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default failure causes an Adverse Effect (as defined in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (Stock Purchase Agreement and applied to this Note, mutatis mutandis) after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and failure, stating that such notice is a “Notice of Default” hereunder and demanding that Buyer remedy same, shall have been given by the Noteholder by registered or certified mail, return receipt requested,
(v) any of the following actions by the Buyer or RNK, Inc. pursuant to or within the meaning of any Bankruptcy Law: (A) commencement of a voluntary case or proceeding, (B) consent to the entry of an order for relief against it in accordance with Section 11.4an involuntary case or proceeding, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, (D) a general assignment for the benefit of its creditors, or (E) admission in writing its inability to pay its debts as the same become due; or
(evi) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having of competent jurisdiction of:
of an order or decree under any Bankruptcy Law that: (iA) a decree or order is for relief in respect of against the CompanyBuyer or RNK, the Guarantor or any of its Designated Subsidiaries Inc. in an involuntary proceeding under any applicable bankruptcycase, insolvency(B) appoints a Custodian of the Buyer or RNK, reorganization Inc. or for all or substantially all of the property of the Buyer or RNK, Inc., as the case may be, or (other than a reorganization under a foreign law that does not relate to insolvencyC) orders the liquidation of the Buyer or other similar law RNK, Inc., and such order or decree or order shall remain remains unstayed and in effect for a period of 60 consecutive 90 days; or
(ii) a decree or order adjudging the Companythen, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than where an Event of Default under clause (g) and (h) abovespecified in Sections 3(a)(i), so long as such Event of Default with respect to such Series shall not have been remedied 3(a)(ii), 3(a)(iii) or waived3(a)(iv) occurs, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunderCollateral Agent, by notice in writing to the Company Buyer (and to the Trustee if given by such Holders“Acceleration Notice”), may declare the principal Balance (or, in the case of Original Issue Discount Securities, such principal amount as may be determined whole or in accordance with the terms thereofpart) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to ; provided that if an Event of Default described under clauses (gspecified in Section 3(a)(v) and (hor 3(a)(vi) aboveoccurs, the principal of all Securities of such Series Balance shall become and be immediately due and payable without any declaration or other act by on the Trustee part of the Noteholder or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonCollateral Agent.
Appears in 1 contract
Samples: Secured Promissory Note (Wave2Wave Communications, Inc.)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case of one or more of the following Events of Default (unless it is either inapplicable with respect to a particular Series or it is specifically deleted from or modified in of Securities (whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of all or any part of the principal or Change of Control purchase price of, or premium, if any, on, any of the Securities of such Series as and when the same shall become due and payable either at maturity, upon any redemption or required repurchase, by declaration of acceleration or otherwise;
(b) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or;
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument of the Issuer under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the CompanyIssuer that has resulted in the acceleration of such Indebtedness, the Guarantor or any of its Designated Subsidiaries (including, default occurring in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of any such Indebtedness at final maturity (and after the maturity thereof (after giving effect to expiration of any applicable grace period) or shall result in periods), other than such Indebtedness in (i) which is payable solely out of the property or assets of a partnership, joint venture or similar entity of which the Issuer is a participant, or which is secured by a lien on the property or assets owned or held by such entity, without further recourse to or liability of the Issuer, or (ii) the principal amount in excess of $30,000,000 becoming or being declared due of, and payable prior interest on, which, when added to the date principal of and interest on which it would otherwise become due and payableall other such Indebtedness (exclusive of Indebtedness under clause (i) above), does not exceed $50,000,000; or
(d) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the Securities of such Series or in this Indenture and such default shall not be cured or such acceleration shall not be rescinded or annulled within failure continues for a period of 30 days after there the date on which written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and demanding that the Issuer remedy the same, shall have been given to the Company and the Guarantor Issuer by the Trustee Trustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event Series of default and requiring Securities at the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4time Outstanding; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect, or a decree or order adjudging the Issuer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Issuer under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(hf) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Issuer shall commence a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect or of a voluntary any other case or proceeding seeking to be adjudicated insolvent a bankrupt or the insolvent, or consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable bankruptcysuch law, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency proceedings case or proceeding against itthe Issuer, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of a petition or answer or consent seeking reorganization, arrangement, adjustment reorganization or composition of the Company, the Guarantor or any of its Designated Subsidiaries relief under any such applicable federal or state law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries Issuer to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee trustee, sequestrator or other similar official of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of any substantial part of the property of the Companyits property, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries Issuer in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied the Issuer specified in 4.1(e) or waived4.1(f) hereof), unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the a particular Series of Securities of such Series then Outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.the
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Event of Default" with respect to Securities of any series, wherever used herein, means any one or more of the following Events events which shall have occurred and be continuing (whatever the reason for such Event of Default (Default), unless it is either inapplicable to a particular Series series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security Security, for such Series) series and whether it shall have occurred and be continuing with respect voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 60 days; PROVIDED that a valid extension of an interest payment period by the Issuer in accordance with the terms of such Securities shall not constitute a failure to pay interest; or
(b) default in the payment of the principal of all or any premium on any Security part of such Series, or any Additional Amounts payable with respect thereto, when such the principal or premium becomes or (if any) on any of the Securities of such Additional Amounts series as and when the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series or contained in this Indenture contained and relating to (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such Series, series) for a period of 60 90 days after the date on which written notice continued specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of the series to which such Series, a written notice specifying such event of default and requiring the Company covenant or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4agreement relates; or
(e) without the Company or consent of the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by Issuer a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer for any substantial part of its or their property or ordering the winding up or liquidation of its or their affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor its or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against ittheir property, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(ig) any other Event of Default provided in any a supplemental indenture indenture. If an Event of Default described in clause (a), (b) or Board Resolution under which such Series of Securities (c) occurs and is issued or in the form of Security for such Series; then continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of each such Series affected series then Outstanding hereunder, hereunder (each such series voting as a separate class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration declaration, the same shall become and shall be immediately due and payable, anything in this Indenture or . Except as otherwise provided in the terms of any series of Securities of such Series contained pursuant to the contrary notwithstanding. With respect to SECTION 2.1, if an Event of Default described under clauses in clause (d) or (g) above with respect to all series of the Securities then Outstanding, occurs and is continuing for a period of 60 days after the notice of the Event of Default, then, and in each and every such case, unless the Principal of all of the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all of the Securities then Outstanding hereunder (htreated as one class) aboveby notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all of the Securities then Outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and upon such declaration, the same shall become immediately due and payable. If an Event of Default described in clause (e) or (f) above occurs and is continuing, then the principal amount of all the Securities of such Series then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act by on the part of the Trustee or any Holder. If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than all series of Securities then Outstanding, then, and in each and every such case, except for any series of Securities the principal of which shall have already become due and payable, either the Trustee or the HoldersHolders of not less than 25% in aggregate principal amount of the Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. This provision, however, is The foregoing provisions are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdiction, the Company moneys due shall have been obtained or entered as hereinafter provided,
(A) the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable pay
(except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereofi) all matured installments of interest, if any, interest upon all the Securities of such Series and series (or all the Securities, as the case may be); and
(ii) the principal of any and all Securities of such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration acceleration; and
(with iii) interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of such series (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit; and
(iv) and in Dollars such amount as shall be sufficient to cover reasonable compensation all amounts payable to the Trustee, its agents, attorneys and counsel and Trustee pursuant to SECTION 7.6.
(B) all other expenses and liabilities incurred, and all advances made, by Events of Default under the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority majority, or any applicable supermajority, in aggregate principal amount at Maturity of all the Securities of such Series series voting as a separate class (or all the Securities, as the case may be, voting as a single class), then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its 37 consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities, that is to say:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking Company shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of corporate action by a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or the Company shall commence any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency, reorganization, arrangement, or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this subsection (d) called “Proceeding”); or if there shall be commenced against the Company any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Guarantor Company or any substantial portion of the property of the Company shall be appointed and shall not be discharged within a period of 60 days; or the Company by any act shall indicate consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another company or the transfer of its Designated Subsidiaries assets as a whole, or substantially as a whole, to such other company as provided in furtherance Section 9.1 shall not make the rights and remedies herein enforceable under this subsection (d) of any Section 5.1 if such actionlast-mentioned company shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.1; or
(ie) any other Event of Default provided in any the supplemental indenture or resolution of the Board Resolution of Directors under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency currency or currency unit in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (de) and (ef) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturitymaturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, remedied then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Kellanova)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of With respect to the Securities, this Indenture and any supplemental indenture the following events are “Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series Default” thereunder and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securitieshereunder:
(a) default Default shall be made by the Issuer in the payment of principal of or any installment of interest upon on any Security of such Series, or any Additional Amounts payable with respect thereto, as and after five (5) days’ written notice from the Trustee following the date when such interest becomes or such Additional Amounts become the same is due and payable, and continuance of such default for a period of 30 days; or
(b) default Default shall be made in the payment due performance or observance of any other material covenant, agreement or provision herein, or in any Security to be performed or observed by the Issuer, or a material breach shall exist in any representation or warranty herein contained, or in any Security, as of the principal date when made, and such default or breach shall have continued for a period of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption thirty (for any sinking fund payment or otherwise), by declaration or otherwise30) days after written notice thereof to the Issuer from the applicable Securityholder; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee The Issuer shall be held involved in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction offinancial difficulties as evidenced:
(i) by the Issuer filing a decree petition in bankruptcy or order for relief reorganization or for the adoption of an arrangement under the United States Bankruptcy Code (as now or in respect of the Companyfuture amended, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency“Bankruptcy Code”) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; oran admission seeking the relief therein provided;
(ii) By the Issuer making a decree or order adjudging general assignment for the Company, the Guarantor or any benefit of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; orcreditors;
(iii) By the Issuer consenting to the appointment of a final and non-appealable order appointing receiver or trustee for all or a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, Issuer or approving as filed in good faith a petition filed against the Guarantor or any of its Designated Subsidiaries or ordering Issuer under said Bankruptcy Code (in both cases without the winding up or liquidation consent of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; orIssuer);
(hiv) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to By the commencement of any insolvency proceedings against ita proceeding or case, or without the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer application or consent seeking reorganization, arrangement, adjustment or composition of the CompanyIssuer, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company seeking (i) its liquidation, reorganization, dissolution or winding-up, or the Guarantor shall pay composition or shall deposit with readjustment of its debts, (ii) the Trustee appointment of a sum sufficient trustee, receiver, custodian, liquidator or the like of the Issuer or of all or any substantial part of its assets, or (iii) similar relief in respect of the Issuer under any law relating to pay bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, and such proceeding or case set forth in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(bi), (ii), or (iii) above continues undismissed or uncontroverted, or an order, judgment or decree approving or ordering any of the foregoing being entered and continuing unstayed and in effect, for a period of sixty (60) days; or
(v) By the Issuer admitting in writing its inability to pay its debts as such debts become due; or
(vi) The Issuer failing to meet the mileposts set forth in Section 1.4 of the Debenture Purchase Agreement, except for the fifteen percent waiver described in that same section.
(d) Issuer shall be terminated, dissolved or liquidated (as a matter of law or otherwise) or proceedings shall be commenced by the Issuer or by any person seeking the termination, dissolution or liquidation of the Issuer. If any one or more Events of Default described in this Section 6.01 shall occur and (e) hereof) all matured installments of interestbe continuing, if any, upon all then the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interestSecurityholder may, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) Securityholder’s option and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the CompanyIssuer, the Guarantor Trustee and the Trustee for other Securityholders, declare the unpaid balance of the Securities owing to said Securityholder to be forthwith due and payable and thereupon such balance shall become so due and payable without presentation, protest or further demand or notice of such Seriesintent to accelerate or other notice of any kind, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonof which are expressly waived by the Issuer.
Appears in 1 contract
Samples: Trust Indenture (First Responder Systems & Technology Inc.)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, on the Securities as and when such interest the same becomes or such Additional Amounts become due and payable, and the continuance of such default for a period of 30 15 calendar days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon acceleration or redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, any Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or Issuer contained in the Guarantor Securities, in this Indenture, as in the case may beSubscription Agreement, in any of the Collateral Agreements, in the Securities Funding Note, the Funding Collateral Agreements or any related documents, and the continuance of such Series, or in this Indenture contained and relating to such Series, failure for a period of 60 15 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Event of Default” " hereunder shall have been and demanding that the Issuers remedy the same, is given to the Company or the Guarantor, as the case may be, Issuers by the Trustee for the Securities of such Series, or to the Company, the Guarantor Issuers and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in under any mortgage, indenture or instrument under which there may be issuedissued or by which there maybe secured or evidenced any Indebtedness for money borrowed by any Issuer or any of its Subsidiaries (or the payment of which is Guaranteed by any Issuer or any of its Subsidiaries), which default is caused by a failure to pay due principal or interest on such Indebtedness after any applicable grace period (a "Payment Default"), and the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been and is continuing a Payment Default, aggregates $300,000 or more; or
(e) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced, evidenced any Indebtedness of the Company, the Guarantor for money borrowed by any Issuer or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 which is Guaranteed by any Issuer or any of its Subsidiaries), which default results in the acceleration of such Indebtedness prior to its express maturity and the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness at under which there has been and is continuing a Payment Default or the maturity thereof (after giving effect to any applicable grace period) of which has been so accelerated and not rescinded, aggregates $300,000 or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faithmore; or
(f) except as permitted failure by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor Issuer or any Person acting on of its behalfSubsidiaries to pay final judgments (other than any judgment as to which a reputable insurance company has accepted coverage without a reservation of rights) aggregating in excess of $300,000, shall deny which judgments are not stayed or disaffirm the Guarantor’s obligations under the Guaranteedischarged within 15 days after their entry; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor any Issuer or any of its Designated Subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law and such decree now or order shall remain unstayed and hereafter in effect for effect, or appointing a period receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor any Issuer or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition for any substantial part of the Company, the Guarantor property of any Issuer or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of any Issuer or any of its Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 15 consecutive days; or
(iiih) any Issuer or any of its Subsidiaries shall commence a final and non-appealable voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order appointing for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor any Issuer or any of its Designated Subsidiaries of or for any substantial part of the property of the Company, the Guarantor any Issuer or any of its Designated Subsidiaries Subsidiaries, or ordering the winding up or liquidation of the affairs of the Company, the Guarantor any Issuer or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or Subsidiaries shall make any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors;
(i) loss by the Issuer or any Subsidiary of any gambling license related to the Collateral or the legal right to operate any gaming establishment related to the Collateral including, without limitation, those necessary to the Ceska Kubice, Rozvadov and Znojmo locations, which loss of license is not remedied within ten (10) days (However, specifically excluding any license in the state of Louisiana).
(j) indictment of any officer or Key Employee of any Issuer or any Subsidiary by any governmental authority;
(k) fraud by an officer or Key Employee of any Issuer or any Subsidiary;
(l) any Issuer does not pay, or shall be unable to pay, or shall admit in writing its inability to pay its debts as such debts become due;
(m) any event which, in the taking reasonable judgment of corporate action by Securityholders of 50% in principal amount of the CompanySecurities has a material adverse effect on the condition, the Guarantor operations, prospects or properties (financial or otherwise) of TWG International, TWG Financing or any of its Designated Subsidiaries Subsidiaries, taken as a whole;
(n) any event or series of events within any one year period which causes a reduction or may cause a reduction in furtherance the value of any such actionthe Collateral in excess of $300,000; or
(io) if all or any part of the Collateral shall be further encumbered, hypothecated, mortgaged or made subject to any other Event of Default lien or security interest, except as otherwise provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then herein. then, and in each and every such case (other than an Event of Default under specified in clause (g) and or (h) aboveabove relating to the Issuer), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 2550% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders) (the "Acceleration Notice"), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the accrued interest thereon to be due and payable immediately, and upon any such declaration immediately (the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding"Acceleration Date"). With respect to If an Event of Default described under clauses specified in clause (g) and or (h) aboveabove relating to the Issuer occurs, all the principal of all Securities of such Series and the accrued interest thereon shall become be immediately due and payable without any declaration or other act by on the part of the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonSecurityholder.
Appears in 1 contract
Samples: Indenture (Trans World Gaming Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the events or conditions specified in any of the following Events of Default clauses (a) — (f) (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to Securities of any Series (any such event or condition, an “Event of Securities:Default”):
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event Subsidiary Guarantee of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Subsidiary Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior relating to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration Series ceases to be rescinded or annulled or to cause such Indebtedness to be discharged in full force and stating that such notice is a “Notice of Default” hereunder effect (other than in accordance with Section 11.4the terms of such Subsidiary Guarantee) or a Subsidiary Guarantor denies or disaffirms its obligations under its Subsidiary Guarantee (other than by reason of a release of a Subsidiary Guarantor from its Subsidiary Guarantee in accordance with the terms of such Subsidiary Guarantee); or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking Company shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of corporate action by a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or the Company shall commence any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency, reorganization, arrangement, or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this subsection (d) called “Proceeding”); or if there shall be commenced against the Company any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Guarantor Company or any substantial portion of the property of the Company shall be appointed and shall not be discharged within a period of 60 days; or the Company by any act shall indicate consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another company or the transfer of its Designated Subsidiaries assets as a whole, or substantially as a whole, to such other company as provided in furtherance Section 9.1 shall not make the rights and remedies herein enforceable under this subsection (d) of any Section 5.1 if such actionlast-mentioned company shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.1; or
(if) any other Event of Default provided in any the supplemental indenture or resolution of the Board Resolution of Directors under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency currency or currency unit in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (de) and (ef) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturitymaturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults Events of Default under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, remedied then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Joy Global Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Unless otherwise provided in the applicable Series Authorization with respect to Securities of any series, "Event of Default" with respect to the Securities of such series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a1) default in the payment of any installment of interest upon any Security of the Securities of such Seriesseries, or including any Additional Amounts payable with Interest in respect theretothereof, as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 daysdays (subject to any deferred of any due date in the case of an Extension Period); or
(b2) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c3) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or
(4) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series (other than a covenant or agreement in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Section specifically dealt with) or contained in this Indenture contained and relating to (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such Series, series) for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of all series affected thereby or, if that series of Securities is held by a Scottish Holdings Trust, the holders of at least 25% in liquidation amount of the Preferred Securities of that Scottish Holdings Trust then outstanding, a written notice specifying such Series at the time Outstanding in accordance with Section 11.4default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(d5) if a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer or any Restricted Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, rehabilitator, sequestrator (or similar official) of the Issuer or of any Restricted Subsidiary for any substantial part of its or their property or ordering the winding up or liquidation of its or their affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(6) the Issuer or any Restricted Subsidiary shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, rehabilitator, sequestrator (or similar official) of the Issuer or any Restricted Subsidiary or for any substantial part of its or their property, or make any general assignment for the benefit of creditors; or
(7) an event of default default, as defined in any mortgageone or more mortgages, indenture indentures, instruments, bonds, debentures, notes or instrument other similar instruments under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of indebtedness (other than the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount Securities of such Indebtedness at the maturity thereof series or nonrecourse obligations) (after giving effect to any applicable grace period"Indebtedness") or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming 25,000,000 for money borrowed by the Issuer or being declared due and payable a Restricted Subsidiary shall occur, if such event of default shall result in the acceleration of such Indebtedness prior to the date on which it would otherwise become due and payable, and its expressed maturity unless such default shall not be cured Indebtedness is discharged or such acceleration shall not be is cured, waived, rescinded or annulled within a period of 30 days after there written notice thereof shall have been given by registered or certified mail, return receipt requested, to the Company and the Guarantor Issuer by the Trustee or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Serieseach series or, if that series of Securities is held by a Scottish Holdings Trust, the holders of at least 25% in liquidation amount of the Preferred Securities of that Scottish Holdings Trust then outstanding, a written notice specifying such event of default and requiring the Company or the Guarantor Issuer to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “"Notice of Default” hereunder in accordance with Section 11.4" hereunder; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) 8) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Seriesseries; provided that if any such default or acceleration referred to in clause (7) above shall cease or be cured, waived, rescinded or annulled, then and in each and every such case the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon cured. If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default under described in clause (g5) or (6)) occurs and (h) above)is continuing, so long as then, and in each and every such Event case, except for any series of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series then Outstanding hereunder, that series by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if any of the case Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series that series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration declaration, the same shall become immediately due and payable. If an Event of Default specified in clause (5) or (6) shall have occurred, the principal amount on all of the Securities shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable provided that, in the case of Securities of a series issued to a Scottish Holdings Trust, if, upon an Event of Default, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series fail to declare the principal of all the Securities of such series, to be immediately due and payable, anything the holders of at least 25% in this Indenture or in liquidation amount of the Preferred Securities of such Series contained Scottish Holdings Trust then outstanding shall have such right by a notice in writing to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) aboveIssuer, the Trustee and the Property Trustee; and upon any such declaration such principal of or such lesser amount and all Securities of such Series accrued and unpaid interest (including any Additional Interest) thereon shall become immediately due and payable without any declaration or payable, provided that the payment of principal and interest and all other act by amounts due with respect to such Securities shall remain subordinated to the Trustee or the Holdersextent provided in Article 13. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon interest (including Additional Interest) on all the Securities of such Series series and the principal of any and all Securities of each such Series series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, at ) specified in the yield to Maturity) Securities of such series to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of each such Series then Outstandingseries, any series of Securities held as assets of a Scottish Holdings Trust, such consent of the holders of the Preferred Securities and the Ordinary Shares of such Scottish Holdings Trust as may be required under the Trust Agreement of such Scottish Holdings Trust, or of all the Outstanding Securities of any series, by written notice to the CompanyIssuer, the Guarantor and to the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to that series and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 1 contract
Samples: Junior Subordinated Indenture (Scottish Annuity & Life Holdings LTD)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following events (“Events of Default Default”) (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(ai) default in the payment of any installment of interest upon any Security of such Series, all or any Additional Amounts payable with respect thereto, part of the Balance of this Note as and when such interest becomes the Balance or such Additional Amounts part thereof shall become due and payable; provided, however, that such failure shall not result in an Event of Default to the extent it is has not occurred more than once during the term of this Note and continuance of such default for it is corrected by Buyer within a period of 30 15 business days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(cii) failure on the part of the Company Buyer or the GuarantorRNK, as the case may be, Inc. duly to observe or perform in all material respects any other of the covenants or agreements on the part of either the Company Buyer or the Guarantor in this IndentureRNK, as the case may be, Inc. contained in the Securities of such Series, or in this Indenture contained and relating to such Series, Transaction Documents (other than those covered by clause (i) above) for a period of 60 15 business days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company and demanding that Buyer or the GuarantorRNK, Inc., as the case may be, remedy the same, shall have been given by the Trustee for the Securities of such SeriesNoteholder by registered or certified mail, or return receipt requested, to the CompanyBuyer or RNK, Inc., as the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4case may be; or
(diii) if the occurrence of any event or condition which results in (i) the acceleration of default as defined the maturity of any material indebtedness of the Buyer or RNK, Inc. (any indebtedness in excess of $500,000 shall be deemed material) or, (ii) enables or, with the giving of notice or lapse of time or both, would enable the holder of any such monetary obligation or any Person acting on such holder’s behalf to accelerate the maturity thereof; or
(iv) any representation, warranty or statement of fact made by Buyer in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor Transaction Documents or any of its Designated Subsidiaries (includingother agreement, schedule or otherwise in each caseconnection with the transactions contemplated thereby being, when made or deemed to have been made, false or misleading in any material respect; provided, however, that such failure shall not result in an Event of Default under any other Series to the extent it is corrected by Buyer within a period of Securities), whether 15 business days (5 business days if such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default failure causes an Adverse Effect as defined in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (Stock Purchase Agreement and applied to this Note, mutatis mutandis) after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and failure, stating that such notice is a “Notice of Default” hereunder and demanding that Buyer remedy same, shall have been given by the Noteholder by registered or certified mail, return receipt requested,
(v) any of the following actions by the Buyer or RNK, Inc. pursuant to or within the meaning of any Bankruptcy Law: (A) commencement of a voluntary case or proceeding, (B) consent to the entry of an order for relief against it in accordance with Section 11.4an involuntary case or proceeding, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, (D) a general assignment for the benefit of its creditors, or (E) admission in writing its inability to pay its debts as the same become due; or
(evi) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having of competent jurisdiction of:
of an order or decree under any Bankruptcy Law that: (iA) a decree or order is for relief in respect of against the CompanyBuyer or RNK, the Guarantor or any of its Designated Subsidiaries Inc. in an involuntary proceeding under any applicable bankruptcycase, insolvency(B) appoints a Custodian of the Buyer or RNK, reorganization Inc. or for all or substantially all of the property of the Buyer or RNK, Inc., as the case may be, or (other than a reorganization under a foreign law that does not relate to insolvencyC) orders the liquidation of the Buyer or other similar law RNK, Inc., and such order or decree or order shall remain remains unstayed and in effect for a period of 60 consecutive 90 days; or
(ii) a decree or order adjudging the Companythen, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than where an Event of Default under clause (g) and (h) abovespecified in Sections 3(a)(i), so long as such Event of Default with respect to such Series shall not have been remedied 3(a)(ii), 3(a)(iii) or waived3(a)(iv) occurs, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunderCollateral Agent, by notice in writing to the Company Buyer (and to the Trustee if given by such Holders“Acceleration Notice”), may declare the principal Balance (or, in the case of Original Issue Discount Securities, such principal amount as may be determined whole or in accordance with the terms thereofpart) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to ; provided that if an Event of Default described under clauses (gspecified in Section 3(a)(v) and (hor 3(a)(vi) aboveoccurs, the principal of all Securities of such Series Balance shall become and be immediately due and payable without any declaration or other act by on the Trustee part of the Noteholder or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonCollateral Agent.
Appears in 1 contract
Samples: Secured Promissory Note (Wave2Wave Communications, Inc.)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, on the Securities as and when such interest the same becomes or such Additional Amounts become due and payable, and the continuance of such default for a period of 30 15 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon acceleration or redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such SeriesSecurities, or in this Indenture contained in the Subscription Agreement or any of the Collateral Agreements and relating to the continuance of such Series, failure for a period of 60 15 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Event of Default” " hereunder shall have been and demanding that the Issuer remedy the same, is given to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such Series, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event failure on the part of the Issuer to appoint a Trustee within 5 days of a written request of the holders of 25% in principal amount of the securities to appoint a Trustee; or
(e) default as defined in under any mortgage, indenture or instrument under which there may be issued, issued or by which there may be secured or evidenced, evidenced any Indebtedness of for money borrowed by the Company, the Guarantor Issuer or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in which is Guaranteed by the Issuer or any of its Subsidiaries), which default is caused by a failure to pay due principal or interest on such Indebtedness after any applicable grace period (a "Payment Default"), and the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) under which there has been and is continuing a Payment Default, aggregates $150,000 or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faithmore; or
(f) except as permitted default under any mortgage, indenture or instrument under which there may be issued or by this Indenture, which there may be secured or evidenced any Indebtedness for money borrowed by the Guarantee shall be held in Issuer or any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect of its Subsidiaries (or the Guarantor payment of which is Guaranteed by the Issuer or any Person acting on of its behalfSubsidiaries), shall deny which default results in the acceleration of such Indebtedness prior to its express maturity and the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been and is continuing a Payment Default or disaffirm the Guarantor’s obligations under the Guaranteematurity of which has been so accelerated and not rescinded, aggregates $150,000 or more; or
(g) failure by the entry by Issuer or any of its Subsidiaries to pay final judgments (other than any judgment as to which a reputable insurance company has accepted coverage without a reservation of rights) aggregating in excess of $150,000, which judgments are not stayed or discharged within 15 days after their entry; or
(h) a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor Issuer or any of its Designated Subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law and such decree now or order shall remain unstayed and hereafter in effect for effect, or appointing a period receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor Issuer or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition for any substantial part of the Company, property of the Guarantor Issuer or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Issuer or any of its Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 15 consecutive days; or
(iiii) the Issuer or any of its Subsidiaries shall commence a final and non-appealable voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order appointing for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of or for any substantial part of the property of the Company, the Guarantor Issuer or any of its Designated Subsidiaries Subsidiaries, or ordering the winding up or liquidation of the affairs of the Company, the Guarantor Issuer or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or Subsidiaries shall make any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, ;
(j) loss by the Issuer or any subsidiary of any gambling license or the taking legal right to operate any gaming establishment including, without limitation, those of corporate action the Gold Nugget or DeRidder locations, but not including any loss resulting from a general prohibition or revocation of gambling licenses by the Company, Louisiana legislature;
(k) indictment of any officer or Key Employee of the Guarantor Issuer or any of its Designated Subsidiaries subsidiaries by any governmental authority;
(l) fraud by an officer or Key Employee of the Issuer or any of its subsidiaries;
(m) the Issuer does not pay, or shall be unable to pay, or shall admit in furtherance of any writing its inability to pay its debts as such actiondebts become due; or
(in) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or event which, in the form reasonable judgment of Security for such Series; then Securityholders of 25% in principal amount of the Securities has a material adverse effect on the condition, operations, prospects or properties (financial or otherwise) of the Issuer or any of its subsidiaries, taken as a whole. then, and in each and every such case (other than an Event of Default under specified in clause (g) and (h) aboveor (i) above relating to the Issuer), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 2550% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders) (the "Acceleration Notice"), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the accrued interest thereon to be due and payable immediately, and upon any such declaration immediately (the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding"Acceleration Date"). With respect to If an Event of Default described under clauses (g) and specified in clause (h) aboveor (i) above relating to the Issuer occurs, all the principal of all Securities of such Series and the accrued interest thereon shall become be immediately due and payable without any declaration or other act by on the part of the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonSecurityholder.
Appears in 1 contract
Samples: Indenture (Trans World Gaming Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Except as may be otherwise provided pursuant to Section 2.03 for any Securities of any series, “Event of Default” with respect to Securities of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium other amounts on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise, and continuance of such default for a period of 30 days; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iid) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(ie) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Series; series. If an Event of Default described in clause (a), (b) or (e) above (if the Event of Default under clause (e) is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless except for any series the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series all series affected thereby then Outstanding hereunderhereunder (treated as one class), by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series affected series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to If an Event of Default described in clause (e) (if the Event of Default under clauses clause (ge) is with respect to all series of Securities at the time Outstanding), (c) or (d) occurs and (h) aboveis continuing, then and in each and every such case, unless the principal of all the Securities of such Series shall have already become immediately due and payable without any declaration or other act by payable, either the Trustee or the Holders. This provisionHolders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), however, is subject by notice in writing to the condition that Issuer (and to the Trustee if at any time after given by Securityholders), may declare the entire principal of the Securities of such Series (or, in the case of if any Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which all the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series then Outstanding and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interestinterest accrued thereon, if any, upon all the Securities of such Series to be due and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurredpayable immediately, and all advances made, by the Trustee, its agents, attorneys and counsel and upon any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration the same shall become immediately due and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonpayable.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case “Event of Default,” with respect to Securities of any series wherever used herein, means each one or more of the following Events events which shall have occurred and be continuing (whatever the reason for such Event of Default (and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) unless it is either inapplicable to a particular Series series or it is specifically deleted from or modified in the instrument establishing an indenture supplemental hereto, if any, under which such Series and the form series of Security for such Series) shall have occurred and be continuing with respect to any Series of SecuritiesSecurities is issued:
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 daysdays and the interest payment date has not been properly extended or deferred; orprovided, however, that if the Issuer and the Guarantor are permitted or required by the terms of the Securities of the applicable series to defer the payment in question, the date on which such payment is due and payable shall be the date on which the Issuer and the Guarantor is required to make payment following such deferral, if such deferral has been elected or required pursuant to the terms of the Securities of that series;
(b) default in the payment of the principal of all or any premium part of the Principal on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; orprovided, however, that if the Issuer and the Guarantor is permitted or required by the terms of the Securities of the applicable series to defer the payment in question, the date on which such payment is due and payable shall be the date on which the Issuer and the Guarantor are required to make payment following such deferral, if such deferral has been elected or required pursuant to the terms of the Securities of that series;
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series;
(d) failure on the part of the Company Issuer or the Guarantor, as the case may be, Guarantor duly to observe or perform any other of the covenants or agreements on the part of the Company Issuer or the Guarantor in this IndentureGuarantor, as the case may beapplicable, in the Securities of such Series, series (other than a covenant or agreement in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Section specifically dealt with) or contained in this Indenture contained and relating to (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such Series, series) for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder and demanding that the Issuer or the Guarantor remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or Issuer and the Guarantor, as the case may be, Guarantor by the Trustee for the Securities of such SeriesTrustee, or to the CompanyIssuer, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; orseries;
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief by a court having jurisdiction in respect the premises shall have been entered adjudging the Issuer or the Guarantor as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company, Issuer or the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, and such decree or order shall remain have continued undischarged and unstayed and in effect for a period of 60 consecutive 90 days; or
(ii) or a decree or order adjudging of a court having jurisdiction in the Company, premises for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Issuer or the Guarantor or any of its Designated Subsidiaries to be insolventrespective property, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment for the winding up or composition of the Company, the Guarantor or any liquidation of its Designated Subsidiaries respective affairs, shall have been entered, and such decree or order shall remain have remained in force and unstayed and in effect for a period of 60 consecutive 90 days; or;
(iiif) the Issuer or the Guarantor shall commence a final and non-appealable voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order appointing for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a custodian, receiver, liquidator, assignee, custodian, trustee or other sequestrator (or similar official official) of the Company, Issuer or the Guarantor or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itrespective property, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Companyshall admit in writing its inability to pay its respective debts generally as they become due;
(g) other than as expressly permitted in this Indenture, the Guarantor Guarantee ceases to be in full force and effect with respect to any Outstanding Securities of such series or any of its Designated Subsidiaries in furtherance of any such actionis declared to be null and void and unenforceable; or
(ih) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities is issued or in the form of Security for such Seriesseries; provided that if any such default shall cease or be cured, waived, rescinded or annulled, then and in each and every such case the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon cured. If an Event of Default (other than an Event of Default under clause (ge) and or (hf) above), so long as such Event of Default ) occurs and is continuing with respect to any series of Securities then Outstanding, then, and in each and every such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payablecase, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series then Outstanding hereunder, series by notice in writing to the Company Issuer and the Guarantor (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration declaration, the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable. If an Event of Default specified in clause (e) or (f) occurs, all unpaid principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding, and interest accrued thereon, if any, shall be due and payable immediately, without any declaration or other act by on the part of the Trustee or the Holdersany Securityholder. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe monies due shall have been obtained or entered as hereinafter provided, the Company Issuer or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series series and the principal of any and all Securities of each such Series series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, at ) specified in the yield to Maturity) Securities of such series to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation all amounts due to the Trustee, its agentsincluding reasonable compensation, attorneys expenses, disbursements and counsel and all other expenses and liabilities incurred, and all advances made, by of the Trustee, its agentsagents and counsel, attorneys and counsel and if any and all defaults Events of Default under this Indenturethe Indenture with respect to such series of Securities, other than the nonpayment of the principal of such Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate of the principal amount at Maturity of the Outstanding Securities of such Series series then Outstanding, by written notice to the Company, Issuer and the Guarantor and to the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to each such series and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case of one or more of the following Events of Default (unless it is either inapplicable with respect to a particular Series or it is specifically deleted from or modified in of Securities (whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of all or any part of the principal or Change of Control purchase price of, or premium, if any, on, any of the Securities of such Series as and when the same shall become due and payable either at maturity, upon any redemption or required repurchase, by declaration of acceleration or otherwise;
(b) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or;
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument of the Issuer under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the CompanyIssuer that has resulted in the acceleration of such Indebtedness, the Guarantor or any of its Designated Subsidiaries (including, default occurring in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of any such Indebtedness at final maturity (and after the maturity thereof (after giving effect to expiration of any applicable grace period) or shall result in periods), other than such Indebtedness in (i) which is payable solely out of the property or assets of a partnership, joint venture or similar entity of which the Issuer is a participant, or which is secured by a lien on the property or assets owned or held by such entity, without further recourse to or liability of the Issuer, or (ii) the principal amount in excess of $30,000,000 becoming or being declared due of, and payable prior interest on, which, when added to the date principal of and interest on which it would otherwise become due and payableall other such Indebtedness (exclusive of Indebtedness under clause (i) above), does not exceed $50,000,000; or
(d) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the Securities of such Series or in this Indenture and such default shall not be cured or such acceleration shall not be rescinded or annulled within failure continues for a period of 30 days after there the date on which written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company and the Guarantor Issuer by the Trustee Trustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event Series of default and requiring Securities at the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4time Outstanding; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect, or a decree or order adjudging the Issuer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Issuer under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(hf) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Issuer shall commence a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect or of a voluntary any other case or proceeding seeking to be adjudicated insolvent a bankrupt or the insolvent, or consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable bankruptcysuch law, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency proceedings case or proceeding against itthe Issuer, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of a petition or answer or consent seeking reorganization, arrangement, adjustment reorganization or composition of the Company, the Guarantor or any of its Designated Subsidiaries relief under any such applicable federal or state law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries Issuer to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee trustee, sequestrator or other similar official of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of any substantial part of the property of the Companyits property, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries Issuer in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied the Issuer specified in 4.1(e) or waived4.1(f) hereof), unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the a particular Series of Securities of such Series then Outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series and the principal or Change of Control purchase price and premium, if any, of any and all Series of Securities of such Series which that shall have become due otherwise than by such acceleration (with interest upon such principal and Change of Control purchase price and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the rate borne by the Securities of such Series (or, interest specified in the case Series of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its their respective agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurred, incurred and all reasonable advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which that shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the CompanyIssuer and to the Trustee, the Guarantor and the Trustee for may waive all defaults (except, unless theretofore cured, a default in payment of principal of, or Change of Control purchase price or premium, if any, or interest on, the Securities of such Series, may waive all defaults ) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. If an Event of Default specified in Section 4.1(e) or 4.1(f) hereof occurs with respect to the Issuer, the principal of and accrued interest on the Securities shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholder.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of all or any part of the principal or Change of Control purchase price of, or premium, if any, on, any of the Securities as and when the same shall become due and payable either at maturity, upon any redemption or required repurchase, by declaration of acceleration or otherwise;
(b) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or;
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument of the Issuer under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the CompanyIssuer that has resulted in the acceleration of such Indebtedness, the Guarantor or any of its Designated Subsidiaries (including, default occurring in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of any such Indebtedness at final maturity (and after the maturity thereof (after giving effect to expiration of any applicable grace period) or shall result in periods), other than such Indebtedness in (i) which is payable solely out of the property or assets of a partnership, joint venture or similar entity of which the Issuer is a participant, or which is secured by a lien on the property or assets owned or held by such entity, without further recourse to or liability of the Issuer, or (ii) the principal amount in excess of $30,000,000 becoming or being declared due of, and payable prior interest on, which, when added to the date principal of and interest on which it would otherwise become due and payableall other such Indebtedness (exclusive of Indebtedness under clause (i) above), does not exceed $20,000,000; or
(d) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the Securities or in this Indenture and such default shall not be cured or such acceleration shall not be rescinded or annulled within failure continues for a period of 30 days after there the date on which written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company and the Guarantor Issuer by the Trustee Trustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring at the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4time Outstanding; or
(e) the Company one or the Guarantor shall fail within 60 days to paymore final judgments, bond decrees or otherwise discharge orders of any uninsured judgment court, tribunal, arbitrator, administrative or court order other governmental body or similar entity for the payment of money shall be rendered against the Issuer or any of its properties in an aggregate amount in excess of $30,000,00020,000,000 (excluding the amount thereof covered by insurance) and such judgment, which is not stayed on appeal decree or is not otherwise order shall remain unvacated, undischarged and unstayed for more than 90 consecutive days, except while being appropriately contested in good faithfaith by appropriate proceedings; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect, or a decree or order adjudging the Issuer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Issuer under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(hg) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Issuer shall commence a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect or of a voluntary any other case or proceeding seeking to be adjudicated insolvent a bankrupt or the insolvent, or consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable bankruptcysuch law, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency proceedings case or proceeding against itthe Issuer, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of a petition or answer or consent seeking reorganization, arrangement, adjustment reorganization or composition of the Company, the Guarantor or any of its Designated Subsidiaries relief under any such applicable federal or state law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries Issuer to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee trustee, sequestrator or other similar official of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of any substantial part of the property of the Companyits property, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries Issuer in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied the Issuer specified in Section 4.1(f) or waived4.1(g) hereof), unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interestinterest upon all the Securities and the principal or Change of Control purchase price and premium, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which that shall have become due otherwise than by such acceleration (with interest upon such principal and Change of Control purchase price and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the rate borne by the Securities of such Series (or, interest specified in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its their respective agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurred, incurred and all reasonable advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which that shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults (except, unless theretofore cured, a default in payment of principal of, or Change of Control purchase price or premium, if any, or interest on, the Securities) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. If an Event of Default specified in Section 4.1(f) or 4.1(g) hereof occurs with respect to the Issuer, the principal of and accrued interest on the Securities shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholder.
Appears in 1 contract
Samples: Indenture (NRG Energy Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events events ("EVENTS OF DEFAULT") (whatever the reason for such Event of Default (unless and whether it is either inapplicable shall be voluntary or involuntary or be effected by operation of law or pursuant to a particular Series any judgment, decree or it is specifically deleted from order of any court or modified in the instrument establishing such Series and the form any order, rule or regulation of Security for such Seriesany administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) a. default in the payment of (i) interest on any installment of interest upon the Debentures, which default shall not have been cured within fifteen (15) Business Days following the applicable Interest Payment Date or (ii) the principal of any Security of such SeriesDebenture, or any Additional Amounts payable with respect thereto, to each of (i) and (ii) as and when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts same shall become due and payable either at their Maturitymaturity, upon any redemption (for any sinking fund payment or otherwise), by declaration conversion or otherwise; or
(c) b. failure on the part of the Company or the Guarantor, as the case may be, to duly to observe or perform any other of the covenants or agreements on the part of the Company (or the Guarantor making by the Company of any announcement, statement or threat that it does not intend to honor the obligations described in this Indenture, as paragraph) contained in this Debenture (other than the case may befailure to issue shares of Common Stock upon conversion because of the Company's non-compliance with applicable Nasdaq rules, in which case Section 4.14 shall be the Securities sole exclusive remedy of such Series, the Holder) the Purchase Agreement or in this Indenture contained and relating to such Series, the Registration Rights Agreement for a period of 60 days fifteen (15) Business Days (other than with respect to an announcement, statement or threat) after the earlier of (x) the date on which any officer of the Company shall have obtained actual knowledge of such failure (or such announcement, statement or threat) or (y) the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have thereof has been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Holder; or
(d) if c. there shall have occurred with respect to any event issue or issues of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness Debt of the Company, Company and/or one or more Subsidiaries having an outstanding principal amount of $2,000,000 or more in the Guarantor or any aggregate for all such issues of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities)all such Persons, whether such Indebtedness Debt now exists or shall hereafter be created or incurredcreated, shall happen and shall consist an event of default in which has caused the payment of more than $30,000,000 in principal amount of holder thereof to declare such Indebtedness at the maturity thereof (after giving effect Debt to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared be due and payable prior to the date on which it would otherwise become due and payable, its stated maturity and such default shall Debt has not be cured been discharged in full or such acceleration shall has not be been stayed, rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities twenty (20) Business Days of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4acceleration; or
(e) the Company d. one or the Guarantor shall fail within 60 days to pay, bond more judgments or otherwise discharge any uninsured judgment or court order orders for the payment of money shall be rendered against the Company or any Subsidiary of the Company in excess of $30,000,0005,000,000 in the aggregate (treating any deductibles, self insurance or retention as not so covered) which is judgments or orders are not stayed on discharged and remain outstanding for a period of thirty (30) consecutive days following entry of the judgment or order which causes the aggregate amount described above to exceed $5,000,000 in which period a stay of enforcement of such judgment or order, by reason of a pending appeal or is otherwise, shall not otherwise being appropriately contested be in good faitheffect; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by e. a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor Company or any of its Designated Subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or any of its Subsidiaries or for any substantial part of the property of the Company or any of its Subsidiaries or ordering the winding up or liquidation of the affairs of the Company or any of its Subsidiaries, and such decree or order shall remain unstayed and in effect for a period of 60 sixty (60) consecutive days; or
(ii) a decree or order adjudging f. the Company, the Guarantor Company or any of its Designated Subsidiaries to be insolventshall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Company or any of its Designated Subsidiaries of or for any substantial part of the property of the Company, the Guarantor Company or any of its Designated Subsidiaries Subsidiaries, or ordering the winding up or liquidation of the affairs of the Company, the Guarantor Company or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or Subsidiaries shall make any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
g. any representation or warranty made by the Company in the Purchase Agreement shall prove to have been incorrect in any material respect when made; or
h. the Common Stock shall be delisted from Nasdaq (or a Subsequent Market, if applicable) or shall be suspended from trading on Nasdaq without resuming trading and/or being relisted thereon or on a Subsequent Market or having such suspension lifted, as the case may be, within fifteen (15) Business Days; or
i. a Registration Statement for the Underlying Shares shall not have been declared effective by the Securities and Exchange Commission on or prior to the 245th day after the Effectiveness Date (as defined in the Registration Rights Agreement) or after its initial effectiveness at any time during the Effectiveness Period (as defined in the Registration Rights Agreement), such Registration Statement lapses in effect or sales of all of the Registrable Securities (as defined in the Registration Rights Agreement) otherwise cannot be made thereunder (whether by reason of the Company's failure to amend or supplement the prospectus included therein in accordance with the Registration Rights Agreement or otherwise) for more than thirty (30) consecutive days or sixty (60) days in any twelve (12) month period excluding (i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or Black-Out Period (as defined in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (gRegistration Rights Agreement) and (h2) above), so long any period during which an Objection (as such Event defined in the Registration Rights Agreement) has been made; or
j. a Change of Default with respect to such Series Control shall occur and the obligations of the Company under this Debenture shall not have been remedied or waived, unless (i) fully assumed by the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration controlling entity that is a publicly traded corporation whose common stock or other act by voting securities is listed for trading on the Trustee Nasdaq or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series a Subsequent Market or (ii) otherwise been fully discharged or accounted; or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Securities Purchase Agreement (Igen International Inc /De)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case AEvent of Default" with respect to Notes of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Notes of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Notes of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) failure on default in the part payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Notes of such series; or
(d) default in the performance, or breach, of any covenant or agreement of the Company or the Guarantor, as the case may be, duly to observe or perform any other Guarantors in respect of the covenants Notes of such series (other than a covenant or agreements on the part agreement in respect of the Company Notes of such series a default in whose performance or the Guarantor whose breach is elsewhere in this IndentureSection specifically dealt with), as the case may be, in the Securities and continuance of such Series, default or in this Indenture contained and relating to such Series, breach for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorthere has been given, as the case may beby first class mail, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess outstanding Notes of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Seriesall series affected thereby, a written notice specifying such event of default or breach and requiring the Company or the Guarantor to cause such acceleration it to be rescinded or annulled or to cause such Indebtedness to be discharged remedied and stating that such notice is a “"Notice of Default” hereunder in accordance with Section 11.4" hereunder; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, Company or the Guarantor or any of its Designated Subsidiaries Guarantors in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) a decree or order adjudging the Company, the Guarantor Company or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order Restricted Subsidiary shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of commence a voluntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or of a voluntary proceeding seeking to be adjudicated insolvent hereafter in effect, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or an order for relief in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable such law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official official) of the Company, the Guarantor Company or any of its Designated Subsidiaries of for any substantial part of the property of the Companyits property, the Guarantor or make any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(ig) any Guarantee ceases to be in full force and effect (except as contemplated by the terms hereof), or any Guarantee is declared in a judicial proceeding to be null and void, or any Guarantor denies or disaffirms in writing its obligations under the terms of this Indenture or its Guarantee; or
(h) any other Event of Default provided in any the supplemental indenture or Board Resolution under which such Series series of Securities Notes is issued or in the form of Security Note for such Series; series. If an Event of Default described in clauses (a), (b), (c), (d) or (h) above (if the Event of Default under clause (d) or (h) is with respect to less than all series of Notes then outstanding) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Notes the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities Notes of each such Series affected series then Outstanding hereunderoutstanding hereunder (voting as a single class) by notice in writing to the Company (and to the Trustee if given by Noteholders), may declare the entire principal of all Notes of all such affected series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. If an Event of Default described in clauses (d) or (h) (if the Event of Default under clause (d) or (h), as the case may be, is with respect to all series of Notes then outstanding), (e), (f) or (g) occurs and is continuing, then and in each and every such case, unless the principal of all the Notes shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Notes then outstanding hereunder (treated as one class), by notice in writing to the Company (and to the Trustee if given by such HoldersNoteholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series Notes then outstanding and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities Notes of such Series any series (oror of all the Notes, in as the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereofbe) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the any Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities Notes of each such Series series (or of all the Notes, as the case may be) and the principal of any and all Securities Notes of each such Series series (or of all the Notes, as the case may be) which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series (or, interest specified in the case Notes of Original Issue Discount Securities, at the yield to Maturity) each such series to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.their respective
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case of one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a1) default in the payment of all or any part of the principal or Change of Control purchase price of, or premium, if any, on, any of the Securities as and when the same shall become due and payable either at maturity, upon any redemption or required repurchase, by declaration of acceleration or otherwise;
(2) default in the payment of any installment of interest upon any Security of such Seriesinterest, or any Additional Amounts payable with respect theretoAmounts, upon any of the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or;
(b3) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument of the Issuer under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the CompanyIssuer that has resulted in the acceleration of such Indebtedness, the Guarantor or any of its Designated Subsidiaries (including, default occurring in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of any such Indebtedness at final maturity (and after the maturity thereof (after giving effect to expiration of any applicable grace period) or shall result in periods), other than such Indebtedness in (i) which is payable solely out of the property or assets of a partnership, joint venture or similar entity of which the Issuer is a participant, or which is secured by a lien on the property or assets owned or held by such entity, without further recourse to or liability of the Issuer, or (ii) the principal amount in excess of $30,000,000 becoming or being declared due of, and payable prior interest on, which, when added to the date principal of and interest on which it would otherwise become due and payableall other such Indebtedness (exclusive of Indebtedness under clause (i) above), does not exceed $20,000,000 in the aggregate;
(4) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the Securities or in this Indenture and such default shall not be cured or such acceleration shall not be rescinded or annulled within failure continues for a period of 30 days after there the date on which written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company and the Guarantor Issuer by the Trustee Trustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring at the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; ortime Outstanding;
(e5) the Company one or the Guarantor shall fail within 60 days to paymore final judgments, bond decrees or otherwise discharge orders of any uninsured judgment court, tribunal, arbitrator, administrative or court order other governmental body or similar entity for the payment of money shall be rendered against the Issuer or any of its properties in an aggregate amount in excess of $30,000,00020,000,000 (excluding the amount thereof covered by insurance), which is not stayed on appeal and such judgment, decree or is not otherwise order shall remain unvacated, undischarged and unstayed for more than 90 consecutive days, except while being appropriately contested in good faith; orfaith by appropriate proceedings;
(f6) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect, or a decree or order adjudging the Issuer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Issuer under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h7) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Issuer shall commence a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect or of a voluntary any other case or proceeding seeking to be adjudicated insolvent a bankrupt or the insolvent, or consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable bankruptcysuch law, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency proceedings case or proceeding against itthe Issuer, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of a petition or answer or consent seeking reorganization, arrangement, adjustment reorganization or composition of the Company, the Guarantor or any of its Designated Subsidiaries relief under any such applicable federal or state law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries Issuer to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee trustee, sequestrator or other similar official of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of any substantial part of the property of the Companyits property, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries Issuer of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries Issuer in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied the Issuer specified in 5.1(f) or waived5.1(g) hereof), unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interestinterest upon all the Securities and the principal or Change of Control purchase price and premium, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which that shall have become due otherwise than by such acceleration (with interest upon such principal andand Change of Control purchase price and premium, if any, and to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the rate borne by of interest specified in the Securities of such Series (orand Additional Amounts, in the case of Original Issue Discount Securitiesif any, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its their respective agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurred, incurred and all reasonable advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which that shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults (except, unless theretofore cured, a default in payment of principal of, or Change of Control purchase price or premium, if any, or interest or Additional Amounts, if any, on the Securities) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. If an Event of Default specified in Section 5.1(f) or 5.1(g) hereof occurs with respect to the Issuer, the principal of and accrued interest and Additional Amounts, if any, on the Security shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholder.
Appears in 1 contract
Samples: Indenture (NRG Energy Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case “Event of Default”, with respect to Securities of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days60 days (or such other period as may be established for the Securities of such series as contemplated by Section 2.03); or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise, and the continuance of such default for five days (or such other period as may be established for the Securities of such series as contemplated by Section 2.03); or
(c) failure on default in the part performance, or breach, of any covenant or warranty of the Company or the Guarantor, as the case may be, duly to observe or perform any other Issuer in respect of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, series (other than a covenant or warranty in respect of the Securities of such series a default in the performance or breach of which is elsewhere in this Indenture contained Section specifically dealt with), and relating to continuance of such Series, default or breach for a period of 60 90 days after there has been given, by registered or certified mail, to the date on which Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of all series affected thereby, a written notice specifying such failure default or breach and requiring the Company or the Guarantor, as the case may be, it to remedy the same be remedied and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4hereunder; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or for all or substantially all of its property and assets or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(he) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Issuer shall commence a voluntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or of a voluntary proceeding seeking to be adjudicated insolvent hereafter in effect, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or an order for relief in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable such law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the its property of the Companyand assets, the Guarantor or make any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(if) any other Event of Default provided for in such series of Securities. Notwithstanding any supplemental indenture other provisions in this Indenture, if the terms of any Securities so provide, at the election of the Issuer, the sole remedy for an Event of Default relating to the failure to comply with Section 4.02 of this Indenture or Board Resolution under Section 314(a)(1) of the Trust Indenture Act of 1939, will, for the period specified for the Securities of such series, consist exclusively of the right to receive additional interest on the Securities accruing at a rate specified for the Securities of such series. Such additional interest will accrue on all outstanding Securities of such series from and including the date on which an Event of Default relating to a failure to comply with the reporting obligations in the Indenture first occurs to, but not including, the date on which such Series Event of Securities Default is issued cured or waived. The foregoing provisions of this paragraph will not affect the rights of Securityholders in the form event of Security for the occurrence of any other Event of Default. In the event the Issuer does not elect to pay such Series; then additional interest specified upon an Event of Default in accordance with this paragraph, the Securities will be subject to acceleration as provided below. If an Event of Default described in clauses (a), (b), (c) or (f) occurs and is continuing, then, and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waivedcase, unless the principal of all of the Securities of such Series series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series series then Outstanding hereunder, hereunder (each such series voting as a separate class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereofof such series) of all the Securities of such Series series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to If an Event of Default described under clauses in clause (gd) or (e) occurs and (h) aboveis continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such Series portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable without any declaration or other act by the Trustee or the Holderspayable. This provisionThe foregoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series series (or of all the Securities, as the case may be) and the principal of any and all Securities of such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities) specified in the Securities of such series, (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults Events of Default under this the Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein—then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of such Series series, each series voting as a separate class (or of all the Securities, as the case may be, voting as a single class), then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Except as otherwise provided with respect to the Securities of any series as contemplated by Section 2.3, "Event of Default" with respect to Securities of any series wherever used herein, means each one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) events which shall have occurred and be continuing with respect (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any Series judgment, decree or order of Securities:any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, series or in this Indenture contained and relating to (other than a covenant or warranty in respect of the Securities of such Series, series a default in the performance or breach of which is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, or by overnight courier or by hand delivery in each case with evidence of the receipt of such overnight courier or hand delivery by the Issuer, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4all series affected thereby; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iif) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against itproperty, or the filing by the Company, the Guarantor or make any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(ig) any other Event of Default provided in any the supplemental indenture or indenture, Board Resolution under which or Officers' Certificate establishing the terms of such Series series of Securities is issued or in the form of Security for such Series; series. Except as otherwise provided with respect to the Securities of any series as contemplated by Section 2.3, if an Event of Default described in clauses (a), (b), (c), (d) or (g) (if the Event of Default under clause (d) or (g), as the case may be, is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case (other than an Event case, except for any series of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless Securities the principal of all Securities of such Series which shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series series then Outstanding hereunder, hereunder (such series voting as a separate class) by notice in writing to the Company Issuer (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in if the case Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable. Except as otherwise provided with respect to the Securities of any series as contemplated by Section 2.3, if an Event of Default described in clause (d) or (g) (if the Event of Default under clause (d) or (g), as the case may be, is with respect to all series of Securities then Outstanding), clause (e) or (f) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class), by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of such Series then Outstanding, and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in . Except as otherwise provided with respect to the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) aboveany series as contemplated by Section 2.3, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provisionforegoing provisions, however, is are subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in if the case of Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined specified in accordance with the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, interest upon all the Securities of such Series series (or of all the Securities, as the case may be) and the principal of any and all Securities of such Series series (or of all the Securities, as the case may be) which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the same rate borne by as the Securities rate of such Series interest or Yield to Maturity (or, in the case of Original Issue Discount Securities, ) specified in the Securities of such series (or at the yield respective rates of interest or Yields to MaturityMaturity of all the Securities, as the case may be) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its agents, attorneys and counsel counsel, and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustee and each predecessor Trustee except as a result of negligence or bad faith, its agents, attorneys and counsel and if any and all defaults under this IndentureEvents of Default with respect to the Securities of such series (or with respect to all of the Securities, as the case may be), other than the nonpayment non-payment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured cured, waived or waived, otherwise remedied as provided herein -- then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of all the Securities of such Series series, each series voting as a separate class, (or of all the Securities, as the case may be, voting as a single class) then Outstanding, by written notice to the Company, Issuer and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Appears in 1 contract
Samples: Senior Subordinated Debt Indenture (Kaufman & Broad Home Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following events ("Events of Default Default") (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 three days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwisepayable; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such Series, or in this Indenture contained and relating to such Series, Notes for a period of 60 15 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Issuer; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness acceleration of the Company, maturity of any Debt of the Guarantor Issuer or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more subsidiaries having a principal amount greater than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.41,000,000; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured a final and non-appealable judgment or court order (not covered by insurance) for the payment of money shall be rendered against the Issuer or any of its subsidiaries in excess of $30,000,0001,000,000 in the aggregate for all such judgments or orders (treating any deductibles, which is self insurance or retention as not stayed on appeal so covered), and such judgment or is not otherwise being appropriately contested in good faithorder shall continue unsatisfied for a period of 60 days; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of the property of the Issuer or ordering the winding up or liquidation of the affairs of the Issuer, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iig) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the CompanyIssuer, or the Guarantor or Issuer shall make any general assignment for the benefit of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiariescreditors; or
(h) the commencement consummation of the consolidation or merger of the Issuer into or with any other entity or entities which results in the exchange of outstanding shares of the Issuer for securities or other consideration issued or paid or caused to be issued or paid by the Company, the Guarantor any such entity or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization Affiliate thereof (other than (x) a reorganization under merger solely for the purpose of reincorporating the Issuer in a foreign law that does not relate different jurisdiction or (y) a consolidation or merger in which the Issuer is the surviving entity and in which the Issuer's Capital Stock outstanding immediately prior to insolvencysuch merger or consolidation are exchanged or converted into or constitute more than 50% of the Issuer's voting power after such consolidation or merger); (ii) the sale or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent transfer by the Company, the Guarantor Issuer of all or any substantially all of its Designated Subsidiaries assets otherwise than to the entry one or more Subsidiaries; or (iii) a transaction or series of transactions in which a decree person or order for relief group of persons (as defined in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition Rule 13d-5(b)1) of the CompanyExchange Act), the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official acquires beneficial ownership (as determined in accordance with Rule 13d-3 of the Company, the Guarantor or any Exchange Act) of its Designated Subsidiaries of any substantial part more than 50% of the property voting power of the CompanyIssuer; then, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) abovespecified in Sections 4.1(f), so long as such Event of Default with respect to such Series shall not have been remedied 4.1(g) or waived4.1(h) hereof), unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% at least a majority in aggregate principal amount at Maturity of the Securities of such Series Notes then Outstanding hereunderoutstanding, by notice in writing to the Company Issuer (and to the Trustee if given by such Holders"Acceleration Notice"), may declare the principal (or, in the case of Original Issue Discount Securities, such entire principal amount as may be determined in accordance with of the terms thereof) of all Notes and the Securities of such Series interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to ; provided that if an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided specified in Section 2.12(b4.1(f), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.,
Appears in 1 contract
Samples: Securities Purchase Agreement (Morgan Stanley Dean Witter & Co)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events events ("EVENTS OF DEFAULT") (whatever the reason for such Event of Default (unless and whether it is either inapplicable shall be voluntary or involuntary or be effected by operation of law or pursuant to a particular Series any judgment, decree or it is specifically deleted from order of any court or modified in the instrument establishing such Series and the form any order, rule or regulation of Security for such Seriesany administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 three days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwisepayable; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such Series, or in this Indenture contained and relating to such Series, Notes for a period of 60 15 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” "NOTICE OF DEFAULT" hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Issuer; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness acceleration of the Company, maturity of any Debt of the Guarantor Issuer or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more subsidiaries having a principal amount greater than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.41,000,000; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured a final and non-appealable judgment or court order (not covered by insurance) for the payment of money shall be rendered against the Issuer or any of its subsidiaries in excess of $30,000,0001,000,000 in the aggregate for all such judgments or orders (treating any deductibles, which is self insurance or retention as not stayed on appeal so covered), and such judgment or is not otherwise being appropriately contested in good faithorder shall continue unsatisfied for a period of 60 days; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Issuer in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of the property of the Issuer or ordering the winding up or liquidation of the affairs of the Issuer, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iig) the Issuer shall commence a decree voluntary case under any applicable bankruptcy, insolvency or order adjudging the Company, the Guarantor other similar law now or any of its Designated Subsidiaries to be insolventhereafter in effect, or approving consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of for any substantial part of the property of the CompanyIssuer, or the Guarantor or Issuer shall make any general assignment for the benefit of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiariescreditors; or
(h) the commencement consummation of the consolidation or merger of the Issuer into or with any other entity or entities which results in the exchange of outstanding shares of the Issuer for securities or other consideration issued or paid or caused to be issued or paid by the Company, the Guarantor any such entity or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization Affiliate thereof (other than (x) a reorganization under merger solely for the purpose of reincorporating the Issuer in a foreign law that does not relate different jurisdiction or (y) a consolidation or merger in which the Issuer is the surviving entity and in which the Issuer's Capital Stock outstanding immediately prior to insolvencysuch merger or consolidation are exchanged or converted into or constitute more than 50% of the Issuer's voting power after such consolidation or merger); (ii) the sale or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent transfer by the Company, the Guarantor Issuer of all or any substantially all of its Designated Subsidiaries assets otherwise than to the entry one or more Subsidiaries; or (iii) a transaction or series of transactions in which a decree person or order for relief group of persons (as defined in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition Rule 13d-5(b)1) of the CompanyExchange Act), the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official acquires beneficial ownership (as determined in accordance with Rule 13d-3 of the Company, the Guarantor or any Exchange Act) of its Designated Subsidiaries of any substantial part more than 50% of the property voting power of the CompanyIssuer; then, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) abovespecified in Sections 5.1(f), so long as such Event of Default with respect to such Series shall not have been remedied 5.1(g) or waived5.1(h) hereof), unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% at least a majority in aggregate principal amount at Maturity of the Securities of such Series Notes then Outstanding hereunderoutstanding, by notice in writing to the Company Issuer (and to the Trustee if given by such Holders"ACCELERATION NOTICE"), may declare the principal (or, in the case of Original Issue Discount Securities, such entire principal amount as may be determined in accordance with of the terms thereof) of all Notes and the Securities of such Series interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to ; PROVIDED that if an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided specified in Section 2.12(b5.1(f), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.,
Appears in 1 contract
Samples: Subordinated Note (Frontstep Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities, that is to say:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a ““ Notice of DefaultDefault ” hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least not less than 25% in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4then Outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking Company shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of corporate action by a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or the Company shall commence any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency, reorganization, arrangement or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this clause (d) called “ Proceeding ”); or if there shall be commenced against the Company any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged or unstayed for a period of 90 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Guarantor Company or any substantial portion of the property of the Company shall be appointed and shall not be discharged or unstayed within a period of 90 days; or the Company by any act shall indicate consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another company or the transfer of its Designated Subsidiaries assets as a whole, or substantially as a whole, to such other company as provided in furtherance Section 9.1 shall not make the rights and remedies herein enforceable under this clause (d) if such last-mentioned company shall, as a part of any such actionconsolidation, amalgamation, merger or transfer, and within 90 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.1; or
(ie) any other Event of Default provided in any the supplemental indenture or Company Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (hd) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses clause (g) and (hd) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (de) and (e) hereoff)) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturitymaturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, remedied then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Lithia Motors Inc)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events events (each an "Event of Default") (whatever the reason for such Event of Default (unless and whether it is either inapplicable shall be voluntary or involuntary or be effected by operation of law or pursuant to a particular Series any judgment, decree or it is specifically deleted from order of any court or modified in the instrument establishing such Series and the form any order, rule or regulation of Security for such Seriesany administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, as and on this Debenture when such interest the same becomes or such Additional Amounts become due and payable, payable and continuance of such the default continues for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, this Debenture when such principal or premium the same becomes or such Additional Amounts become due and payable at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor Issuer contained in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained Debenture (other than those covered by clauses (a) and relating to such Series, (b) above) for a period of 60 30 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4Issuer; or
(d) if Issuer pursuant to or within the meaning of any event U.S. Bankruptcy Law:
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of default as defined an order for relief against it in any mortgage, indenture an involuntary case or instrument under which there may be issued, proceeding,
(iii) consents to the appointment of a Custodian of it or by which there may be secured for all or evidenced, any Indebtedness of the Company, the Guarantor or any substantially all of its Designated Subsidiaries property,
(includingiv) makes a general assignment for the benefit of its creditors, or
(v) admits in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in writing its inability to pay its debts as the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise same become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4due; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having of competent jurisdiction ofenters an order or decree under any U.S. Bankruptcy Law that:
(i) a decree or order is for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries against Issuer in an involuntary proceeding under any applicable bankruptcycase,
(ii) appoints a Custodian of Issuer or for all or substantially all of the property of Issuer, insolvencyor
(iii) orders the liquidation of Issuer, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such order or decree or order shall remain remains unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Companythen, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than where an Event of Default under clause (g) and (h) above)occurs, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunderHolder, by notice in writing to the Company (and to the Trustee if given by such Holders)Issuer, may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series aggregate Debenture Amount to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to ; provided that if an Event of Default described under clauses specified in clause (gd) and or (he) aboveof this Section 3.1 occurs, the principal of all Securities of such Series Debenture Amount shall become and be immediately due and payable without any declaration or other act by on the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal part of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonHolder.
Appears in 1 contract
Samples: Convertible Subordinated Debenture (Infocast Corp /Nv)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturity, upon redemption (for any sinking fund payment or otherwise)maturity, by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer contained in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument evidencing or under which there may be issued, or by which there may be secured or evidenced, any Indebtedness the Issuer has at the date of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists this Indenture or shall hereafter be created or incurredhave outstanding at least $25,000,000 aggregate principal amount of indebtedness for borrowed money, shall happen and be continuing and such indebtedness shall consist of default in have been accelerated so that the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) same shall be or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared become due and payable prior to the date on which it the same would otherwise have become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 ten days after there notice thereof shall have been given to the Company and the Guarantor Issuer by the Trustee (if such event be known to it), or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying at the time outstanding; provided that if such event of default under such indenture or instrument shall be remedied or cured by the Issuer or waived by the holder of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without further action upon the part of either the Trustee or any of the Securityholders, and requiring provided further that, subject to the Company provisions of Sections 5.1 and 5.2, the Trustee shall not be charged with knowledge of any such default unless written notice thereof shall have been given to the Trustee by the Issuer, by the holder or an agent of the Guarantor to cause holder of any such acceleration to be rescinded indebtedness, by the trustee then acting under any indenture or annulled other instrument under which such default shall have occurred, or to cause such Indebtedness to be discharged and stating that such notice is a “Notice by the holders of Default” hereunder not less than 25% in accordance with Section 11.4the aggregate principal amount at maturity of the Securities at the time outstanding; or
(e) the Company repudiation by the Issuer of any of its obligations under the Security Documents or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge unenforceability in any uninsured judgment or court order for material respect of the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faithSecurity Documents against the Issuer; or
(f) except failure by the Issuer to maintain insurance as permitted required by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the GuaranteeSection 3.18; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Weirton Steel Corp)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case Event of Default", with respect to the Securities of any series, wherever used herein, means each one or more of the following Events events which shall have occurred and be continuing (whatever the reason for such Event of Default (and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless it is either inapplicable to a particular Series series or it is specifically deleted from or modified in the instrument establishing applicable resolution of the Board of Directors or in the supplemental indenture under which such Series and series of Securities is issued, as the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securitiescase may be, as contemplated by Section 3.1:
(a) default in the payment of any installment of interest upon any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 daysdays and the time for payment of such interest has not been extended; provided, however that if the Company is permitted by the terms of the Securities of the applicable series to defer the payment in question, the date on which such payment is due and payable shall be the date on which the Company is required to make payment following such deferral, if such deferral has been elected pursuant to the terms of the Securities of that series; or
(b) default in the payment of all or any part of the principal of or any premium premium, if any, on any Security of the Securities of such Series, or any Additional Amounts payable with respect thereto, series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Stated Maturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwiseotherwise and the time for payment of such principal (or premium, if any), has not been extended; provided, however, that if the Company is permitted by the terms of the Securities of the applicable series to defer the payment in question, the date on which such payment is due and payable shall be the date on which the Company is required to make payment following such deferral, if such deferral has been elected pursuant to the terms of the Securities of that series; or
(c) failure on default in the part deposit of any sinking fund payment when and as due and payable by the Company or the Guarantor, as the case may be, duly to observe or perform terms of any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, series; or
(d) default in the performance or observance of any other covenant or agreement of the Company in respect of the Securities of such series (other than a covenant or agreement in respect of the Securities of such series a default in whose performance or observance is elsewhere in this Indenture contained Section specifically dealt with), and relating to continuance of such Series, default for a period of 60 days after the date on which written notice specifying such failure and requiring the Company there has been given, by registered or the Guarantorcertified mail, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Seriesall series affected thereby, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration it to be rescinded or annulled or to cause such Indebtedness to be discharged remedied and stating that such notice is a “"Notice of Default” hereunder in accordance with Section 11.4" hereunder; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Idaho Power Co)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court requiring the making of any payment (including the posting of a bond) in respect thereof or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect continuing, that is to any Series of Securitiessay:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 daysone day; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Securities as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturity, upon redemption (for any sinking fund payment or otherwise)maturity, by declaration or otherwise; or
(c) failure on the part of the Company Issuer duly to observe or perform the Guarantor, as covenants set forth in Sections 3.09 through Section 3.14;
(d) failure on the case may be, part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, Issuer in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantorfailure, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified mail, return receipt requested, to the Company or the Guarantor, as the case may be, Issuer by the Trustee for the Securities of such SeriesTrustee, or to the Company, the Guarantor Issuer and the Trustee by the Holders holders of at least 2550% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4outstanding; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Parent Guarantee shall be held in any a judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or either the Guarantor Guarantor, or any Person person or entity acting on its behalfbehalf of the Guarantor, shall deny or disaffirm the Guarantor’s its obligations under the Parent Guarantee; or
(f) the occurrence of a Collateral Event of Default; or
(g) any legal proceeding shall have been instituted or any other event shall have occurred or condition shall exist that calls into question the entry validity or binding effect of any agreement of the Issuer hereunder, under the Securities or under the Collateral Agreement (which shall include, without limitation, any repudiation by a court having competent jurisdiction of:Seller of the Securities, this Indenture or the Collateral Agreement);
(h) any representation or warranty made by the Issuer or the Guarantor under this Indenture or the Collateral Agreement or in any certificate delivered pursuant hereto turns out to be incorrect or misleading in any material respect;
(i) one or more final judgments or orders (for the avoidance of doubt, a “final” judgment or order means one that requires payment or posting of a bond) shall be rendered against the Issuer or the Guarantor and such final judgments or orders shall continue unsatisfied and unstayed for a period of 45 days; provided that if all judgments or orders pending against the Issuer or the Guarantor at any one time require payment in an aggregate amount of less than $15,000,000 (or equivalent thereof in other currencies) an Event of Default shall not have occurred unless any such final judgments or orders remain unsatisfied and unstayed at the end of the additional 20 Business Days’ period immediately following the 45 days’ period mentioned in the preceding clause of this sentence;
(i) the Issuer or the Guarantor (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder), or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or cash collateral in respect thereof to be demanded, provided that if any of the above default events in respect of the Issuer or the Guarantor requires payment in an aggregate amount of less than $15,000,000 (or equivalent thereof in other currencies) an Event of Default shall not have occurred unless any such default remains unsatisfied or fails to be rectified following a 20 Business Days’ period immediately following the occurrence of such default event; except that if the Indebtedness relates to or arises under a Swap Contract then none of the preceding shall constitute an Even of Default unless it also constitutes and event of default under the relevant Swap Contract; or (ii) there occurs under any Swap Contract an early termination event resulting from any event of default under such Swap Contract as to which the Issuer or the Guarantor is the Defaulting Party (as defined in such Swap Contract);
(k) Proceedings (as defined in the Escrow Agreement) shall have resulted in a final judgment or order to dispose of the Escrowed Assets (as defined in the Escrow Agreement) (for the avoidance of doubt, for purposes of this sentence, a “final” judgment or order means one that requires the sale or other disposition of the Escrowed Assets);
(l) the Collateral Agent shall have received from the Escrow Agent notice (i) that the Escrow Agent’s fees, expenses or costs have not been paid by the Issuer or the Guarantor as required under the Escrow Agreement, but only if on or before the sixteenth day from the date of such notice, the Trustee has not received evidence from the Issuer that such fees, expenses or costs have been paid, or (ii) of the resignation of the Escrow Agent, but only if on or before the 90th day from the date of the Escrow Agent’s resignation notice a successor Escrow Agent has not accepted its appointment as Escrow Agent;
(m) the Third Party Lender shall exercise its rights under or otherwise early terminate any Permitted Financing Transaction;
(n) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company, Issuer or the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law and such decree now or order shall remain unstayed and hereafter in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolventeffect, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, Issuer or the Guarantor or any of its Designated Subsidiaries of for any substantial part of the their respective property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiariestheir respective affairs; or
(ho) the commencement by the Company, Issuer or the Guarantor or any of its Designated Subsidiaries of shall commence a voluntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or of a voluntary proceeding seeking to be adjudicated insolvent hereafter in effect, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or an order for relief in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable such law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or similar official official) of the Company, Issuer or the Guarantor or any of its Designated Subsidiaries of for any substantial part of the property of the Companytheir respective property, the Guarantor or make any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of an general assignment for the benefit of their respective creditors; then, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case described in clauses (other than an Event of Default under clause a), (b), (c), (d), (e), (f), (g) ), (h), (i), (j), and (hk) above), so long as such Event of Default with respect to such Series shall not have been remedied or waivedSection 4.01, unless the principal of all of the Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders holders of not less than 2550% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding outstanding hereunder, by notice in writing to the Company Issuer in accordance with Section 11.03 (and to the Trustee if given by such HoldersSecurityholders), may declare the entire principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything ; provided that if any event described in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and a), (h) aboveb), the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(bc), (d) and ), (e) hereof) all matured installments of interest), if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.f),
Appears in 1 contract
Samples: Indenture (Eco Telecom LTD)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case If one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body or otherwise) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of all or any part of the principal of, or premium, if any, on, any of the Notes as and when the same shall become due and payable either at maturity, upon any redemption or required repurchase, by declaration of acceleration or otherwise; or
(b) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Notes as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable at their Maturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; or
(d) if any an event of default default, as defined in any mortgage, indenture or instrument of the Company under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the CompanyCompany that has resulted in the acceleration of such Indebtedness, or any default occurring in payment of any such Indebtedness at final maturity (and after the Guarantor expiration of any applicable grace periods), other than such Indebtedness (i) which is payable solely out of the property or assets of a partnership, joint venture or similar entity of which the Company or any of its Designated Subsidiaries or Affiliates is a participant, or which is secured by a lien on the property or assets owned or held by such entity, without further recourse to or liability of the Company, or (includingii) the principal of, in each caseand interest on, an Event which, when added to the principal of Default and interest on all other such Indebtedness (exclusive of Indebtedness under clause (i) above), does not exceed $20,000,000; or
(d) failure on the part of the Company duly to observe or perform any other Series of Securities), whether such Indebtedness now exists the covenants or shall hereafter be created or incurred, shall happen and shall consist agreements on the part of default the Company in the payment Notes or in this Indenture and such failure continues for a period of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (90 days after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due written notice specifying such failure, stating that such notice is a "Notice of Default" hereunder and payabledemanding that the Company remedy the same, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee Trustee, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring Notes at the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4time Outstanding; or
(e) the Company one or the Guarantor shall fail within 60 days to paymore final, bond nonappealable judgments, decrees or otherwise discharge orders of any uninsured judgment court, tribunal, arbitrator, administrative or court order other governmental body or similar entity for the payment of money shall be rendered against the Company or any of its properties in an aggregate amount in excess of $30,000,00020,000,000 (excluding the amount thereof covered by insurance) and such judgment, which is not stayed on appeal decree or is not otherwise order shall remain unvacated, undischarged and unstayed for more than 90 days, except while being appropriately contested in good faithfaith by appropriate proceedings; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries Company in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect, or a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Company under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or for any substantial part of its property or ordering the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall remain unstayed and in effect for a period of 60 90 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(hg) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of Company shall commence a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law now or hereafter in effect or of a voluntary any other case or proceeding seeking to be adjudicated insolvent a bankrupt or the insolvent, or consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary case or proceeding under any applicable bankruptcysuch law, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency proceedings case or proceeding against itthe Company, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries Company of a petition or answer or consent seeking reorganization, arrangement, adjustment reorganization or composition of the Company, the Guarantor or any of its Designated Subsidiaries relief under any such applicable federal or state law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries Company to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee trustee, sequestrator or other similar official of the Company, the Guarantor Company or any of its Designated Subsidiaries of any substantial part of the property of the Companyits property, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries Company of an assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries Company in furtherance of any such action; or
(i) any other Event of Default provided in any supplemental indenture or Board Resolution under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above), so long as such Event of Default with respect to such Series shall not have been remedied the Company specified in Section 4.1(f) or waived4.1(g) hereof), unless the -------------- ------ principal amount of all Securities of such Series the Notes shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series Notes then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such HoldersNoteholders), may declare the principal (or, in the case of Original Issue Discount Securities, such entire principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series Notes and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if if, at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) Notes shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interestinterest upon all the Notes and the principal and premium, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which Notes that shall have become due otherwise than by such acceleration (with interest upon such principal and premium, if any, and, to the extent that payment of such interest is enforceable under applicable law, upon on overdue installments of interest, at the rate borne by the Securities of such Series (or, interest specified in the case of Original Issue Discount SecuritiesNotes, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee and each predecessor Trustee, its their respective agents, attorneys and counsel counsel, and all other reasonable expenses and liabilities incurredincurred and all reasonable advances made by the Trustee and each predecessor Trustee except as a result of gross negligence or bad faith, and all advances made, by the Trustee, its agents, attorneys and counsel and if any and all defaults Events of Default under this Indenture, other than the nonpayment non-payment of the principal of Securities of such Series which that shall have become due by such acceleration, shall have been cured cured, waived or waivedotherwise remedied as provided herein, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series Notes then Outstanding, by written notice to the Company, Company and to the Guarantor and the Trustee for the Securities of such SeriesTrustee, may waive all defaults (except, unless theretofore cured, a default in payment of principal of, or premium, if any, or interest on, the Notes) and rescind and annul such declaration and its consequences; , but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. If an Event of Default specified in Section 4.1(f) or 4.1(g) hereof occurs -------------- ------ with respect to the Company, the principal of and accrued interest on the Notes shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Noteholder.
Appears in 1 contract
Samples: Indenture (Edison Mission Energy)
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities, that is to say:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security the Securities of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this Indenture, as the case may be, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “"Notice of Default” " hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the Trustee by the Holders of at least 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking Company shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of corporate action by a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; or the Company shall commence any proceeding relating to the Company or any substantial portion of the property of the Company under any insolvency, reorganization, arrangement, or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this subsection (d) called "Proceeding"); or if there shall be commenced against the Company any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Guarantor Company or any substantial portion of the property of the Company shall be appointed and shall not be discharged within a period of 60 days; or the Company by any act shall indicate consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator or sequestrator of, or for, the Company or any substantial portion of the property of the Company; provided that a resolution or order for winding-up the Company with a view to its consolidation, amalgamation or merger with another company or the transfer of its Designated Subsidiaries assets as a whole, or substantially as a whole, to such other company as provided in furtherance Section 9.1 shall not make the rights and remedies herein enforceable under this subsection (d) of any Section 5.1 if such actionlast-mentioned company shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.1; or
(ie) any other Event of Default provided in any supplemental indenture the Supplemental Indenture or resolution of the Board Resolution of Directors under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency currency or currency unit in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 2.5 for the Securities of such Series and except as provided in Section 2.12(b2.14(b), (de) and (ef) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity39 maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, remedied then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor Company and to the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either inapplicable to a particular Series or it is specifically deleted from or modified in whatever the instrument establishing such Series and the form of Security reason for such SeriesEvent of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall have occurred and be continuing with respect to any Series of Securitiescontinuing:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, the Note as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 daysat maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of all or any part of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, the Note as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable payable, at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise)redemption, by declaration or otherwise; or
(c) failure on the part of the Company Issuer or the Guarantor, as the case may be, its Subsidiaries duly to observe or perform any other of the covenants or agreements on the part of the Company Issuer or the Guarantor its Subsidiaries contained in this Indenture, as the case may be, Note or in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given to the Company or the Guarantor, as the case may be, by the Trustee for the Securities of such Series, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4; orMerger Agreement;
(d) if any event default shall occur under the terms of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness Debt of the Company, the Guarantor Issuer or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4Subsidiaries; or
(e) any event or condition shall occur which results in the Company acceleration of the maturity of any Debt of the Issuer or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured of its Subsidiaries; or
(f) a judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or rendered against the Guarantor Issuer or any Person acting on of its behalf, shall deny Subsidiaries other than judgement or disaffirm order enforcing the Guarantor’s payment obligations of the Issuer and its Subsidiaries under the GuaranteeSettlement Agreement and Mutual General Release of all Claims dated October 3, 1997 among Dalen Trading Co., Ozite Corporation and MGC, Inc.; or
(g) the entry by a court having competent jurisdiction of:
(i) in the premises shall enter a decree or order for relief in respect of the Company, the Guarantor Issuer or any of its Designated Subsidiaries in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law and such decree now or order shall remain unstayed and hereafter in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolventeffect, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or other similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of or for any substantial part of the property of the Company, the Guarantor Issuer or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor Issuer or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor Issuer or any of its Designated Subsidiaries of shall commence a voluntary proceeding case under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) insolvency or other similar law now or of a voluntary proceeding seeking to be adjudicated insolvent hereafter in effect, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or an order for relief in an involuntary proceeding case under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable such law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee custodian, trustee, sequestrator (or similar official official) of the Company, the Guarantor Issuer or any of its Designated Subsidiaries of or for any substantial part of the property of the Company, the Guarantor Issuer or any of its Designated Subsidiaries Subsidiaries, or the making by the Company, the Guarantor Issuer or any of its Designated Subsidiaries of an shall make any general assignment for the benefit of creditors, or the taking of corporate action by the Company, the Guarantor or any of its Designated Subsidiaries in furtherance of any such action; or;
(i) any other Event of Default provided representation or warranty made by the Issuer in the Merger Agreement or in any supplemental indenture certificate, financial statement or Board Resolution other document delivered pursuant to the Merger Agreement shall prove to have been incorrect when made;
(j) failure on the part of the Issuer to file a registration statement with respect to the Conversion Share's with the SEC on or prior to the First Trigger Date;
(k) failure on the part of the Issuer to file a listing application with respect to the Conversion shares with NASDAQ on or prior to the First Trigger Date;
(l) failure on the part of the Issuer cause a registration statement covering the Conversion Shares to become effective under which such Series the Securities Act on or prior to the Third Trigger Date;
(m) failure on the part of Securities is issued the Issuer to list the Conversion Shares on NASDAQ on or in prior to the form Third Trigger Date;
(n) failure on the part of Security for such Seriesthe Issuer to cause the Conversion Shares to be freely transferable on or prior to the Third Trigger Date;
(o) a Change of Control of the Issuer or PS&T shall occur, other than pursuant to the Merger; then then, and in each and every such case (other than an Event of Default under clause (gspecified in Section 3.01(g) and (hor 3.01(h) abovehereof), so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either the Trustee for such Series or the Holders of not less than 25% in aggregate principal amount at Maturity of the Securities of such Series then Outstanding hereunderHolder, by notice in writing to the Company Issuer (and to the Trustee if given by such Holders"Acceleration Notice"), may declare the principal (or, in entire Principal Sum of the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with Note and the terms thereof) of all the Securities of such Series interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to ; provided that if an Event of Default described under clauses (gspecified in Section 3.01(g) and (hor 3.01(h) aboveoccurs, the principal Principal Sum of all Securities of such Series and accrued interest on the Notes shall become immediately and be immedi ately due and payable without any declaration or other act by on the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with any judgment or decree of a court of competent jurisdiction, the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (d) and (e) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal part of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturity) to the date of such payment or deposit) and in Dollars such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the Trustee, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity of the Securities of such Series then Outstanding, by written notice to the Company, the Guarantor and the Trustee for the Securities of such Series, may waive all defaults and rescind and annul such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereonHolder.
Appears in 1 contract
Event of Default Defined; Acceleration of Maturity; Waiver of Default. In case one or more of the following Events of Default (unless it is either expressly indicated as inapplicable to a particular Series in the instrument establishing such Series or it is specifically deleted from or modified in the instrument establishing such Series and the form of Security for such Series) shall have occurred and be continuing with respect to any Series of Securities, that is to say:
(a) default in the payment of any installment of interest upon any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such interest becomes or such Additional Amounts the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such Series, or any Additional Amounts payable with respect thereto, Series as and when such principal or premium becomes or such Additional Amounts the same shall become due and payable either at their Maturitymaturity, upon redemption (for any sinking fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company or the Guarantor, as the case may be, Guarantor to duly to observe or perform any other of the covenants or agreements on the part of the Company or the Guarantor in this IndentureGuarantor, as the case may berespectively, in the Securities of such Series, or in this Indenture contained and relating to such Series, for a period of 60 90 days after the date on which written notice specifying such failure and requiring the Company or the Guarantor, as the case may be, Guarantor to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given by registered or certified mail to the Company or the Guarantor, as the case may be, by the a Trustee for the Securities of such Series, or to the Company, the Guarantor Company and the a Trustee by the Holders of at least 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series at the time Outstanding in accordance with Section 11.4outstanding; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company, the Guarantor or any of its Designated Subsidiaries (including, in each case, an Event of Default under any other Series of Securities), whether such Indebtedness now exists or shall hereafter be created or incurred, shall happen and shall consist of default in the payment of more than $30,000,000 in principal amount of such Indebtedness at the maturity thereof (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $30,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount at Maturity of the Outstanding Securities of such Series, a written notice specifying such event of default and requiring the Company or the Guarantor to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder in accordance with Section 11.4; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $30,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
(f) except as permitted by this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor or any Person acting on its behalf, shall deny or disaffirm the Guarantor’s obligations under the Guarantee; or
(g) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company, the Guarantor or any of its Designated Subsidiaries in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company, the Guarantor or any of its Designated Subsidiaries to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or ordering the winding up or liquidation of the affairs of the Company, the Guarantor or any of its Designated Subsidiaries; or
(h) the commencement by the Company, the Guarantor or any of its Designated Subsidiaries of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company, the Guarantor or any of its Designated Subsidiaries of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company, the Guarantor or any of its Designated Subsidiaries under any applicable law, or the consent by the Company, the Guarantor or any of its Designated Subsidiaries to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company, the Guarantor or any of its Designated Subsidiaries of any substantial part of the property of the Company, the Guarantor or any of its Designated Subsidiaries or the making by the Company, the Guarantor or any of its Designated Subsidiaries of make an assignment for the benefit of creditors, or shall file a petition in bankruptcy; or the taking Company or the Guarantor shall be adjudicated insolvent or bankrupt, or shall petition or shall apply to any court having jurisdiction in the premises for the appointment of corporate action by a receiver, trustee, liquidator, sequestrator or similar official of, or for, the Company, Company or the Guarantor or any substantial portion of the property of the Company or the Guarantor, respectively ; or the Company or the Guarantor shall commence any proceeding relating to the Company or the Guarantor, respectively, or any substantial portion of the property of the Company or the Guarantor, respectively, under any insolvency, reorganization, arrangement, or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation law or statute of any jurisdiction, whether now or hereafter in effect (hereinafter in this subsection (d) called “Proceeding”); or if there shall be commenced against the Company or the Guarantor any Proceeding and an order approving the petition shall be entered, or such Proceeding shall remain undischarged for a period of 60 days; or a receiver, trustee, liquidator or sequestrator of, or for, the Company or the Guarantor, respectively, or any substantial portion of the property of the Company or the Guarantor shall be appointed and shall not be discharged within a period of 60 days; or the Company or the Guarantor by any act shall indicate consent to or approval of or acquiescence in any Proceeding or the appointment of a receiver, trustee, liquidator, sequestrator or similar official of, or for, the Company or the Guarantor, respectively, or any substantial portion of the property of the Company or the Guarantor, respectively; provided that a resolution or order for winding-up the Company or the Guarantor with a view to its consolidation or merger with another company or the transfer of its Designated Subsidiaries assets as a whole, or substantially as a whole, to such other company as provided in furtherance Section 9.1 shall not make the rights and remedies herein enforceable under this subsection (d) of any Section 5.1 if such actionlast-mentioned company shall, as a part of such consolidation, amalgamation, merger or transfer, and within 60 days from the passing of the resolution or the date of the order, comply with the conditions to that end stated in Section 9.1; or
(ie) any other Event of Default provided in any the supplemental indenture or resolution of the Board Resolution of Directors under which such Series of Securities is issued or in the form of Security for such Series; then and in each and every such case (other than an Event of Default under clause (g) and (h) above)case, so long as such Event of Default with respect to such Series shall not have been remedied or waived, unless the principal of all Securities of such Series shall have already become due and payable, either one of the Trustee Trustees for such Series or the Holders of not less than 25% twenty-five percent in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee Trustees if given by such Holders), may declare the principal (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) of all the Securities of such Series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such Series contained to the contrary notwithstanding. With respect to an Event of Default described under clauses (g) and (h) above, the principal of all Securities of such Series shall become immediately due and payable without any declaration or other act by the Trustee or the Holders. This provision, however, is subject to the condition that if at any time after the principal of the Securities of such Series (or, in the case of Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms thereof) shall have been so declared due and payable, and if recission would not conflict with before any judgment or decree for the payment of a court of competent jurisdictionthe moneys due shall have been obtained or entered as hereinafter provided, the Company or the Guarantor shall pay or shall deposit with the Trustee Trustees a sum sufficient to pay in the Currency in which the Securities of such Series are payable (except as otherwise provided pursuant to Section 2.3 for the Securities of such Series and except as provided in Section 2.12(b), (de) and (ef) hereof) all matured installments of interest, if any, upon all the Securities of such Series and the principal of any and all Securities of such Series which shall have become due otherwise than by such acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, upon overdue installments of interest, at the rate borne by the Securities of such Series (or, in the case of Original Issue Discount Securities, at the yield to Maturitymaturity) to the date of such payment or deposit) and in Dollars or Canadian Dollars, as applicable, such amount as shall be sufficient to cover reasonable compensation to the TrusteeTrustees, its agents, attorneys and counsel and all other expenses and liabilities incurred, and all advances made, by the TrusteeTrustees, its agents, attorneys and counsel and any and all defaults under this Indenture, other than the nonpayment of the principal of Securities of such Series which shall have become due by such acceleration, shall have been cured or waived, remedied then and in every such case the Holders of at least a majority in aggregate principal amount at Maturity maturity of the Securities of such Series then Outstanding, by written notice to the Company, Company and to the Guarantor and the Trustee Trustees for the Securities of such Series, may waive all defaults in respect of such Series and rescind and annul such declaration and its consequencesconsequences in respect of such Series; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default in respect of such Series or shall impair any right consequent thereon.
Appears in 1 contract
Samples: Indenture (Kellogg Co)
