Payments to Debentureholders. No payment shall be made with respect to the principal of, interest on or any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if: (i) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Senior Debt occurs and is continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or (ii) a default, other than a Payment Default, on any Designated Senior Debt occurs and is continuing that permits holders of, or the trustee or agent on behalf of the holders of, such Designated Senior Debt or a Representative thereof to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures: (1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases to exist, or (2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) before any payment is made on account of the principal of, interest on or any other amounts due on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders or the Trustee would be entitled, except for the provisions of this Article 4, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders, or as otherwise required by law or a court order) or their Representative or Representatives, as their respective interests may appear, to the extent necessary to pay all Senior Debt in full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt, before any payment or distribution is made to the Debentureholders or to the Trustee. For purposes of this Article 4, the words, “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt which may at the time be outstanding provided that (i) the Senior Debt is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 12 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
Appears in 2 contracts
Samples: Indenture (Mentor Graphics Corp), Indenture (Mentor Graphics Corp)
Payments to Debentureholders. No payment shall be made with respect to the principal of, interest on premium, if any, or any other amounts due Interest on the Debentures (including, but not limited to, the redemption price Redemption Price with respect to the Debentures to be called for repurchase redemption in accordance with Section 3.02, submitted for purchase in accordance 3.02 or Repurchase Price with Section 3.05 or respect to Debentures submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture3.05), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(i) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Senior Debt Indebtedness occurs and is continuing (or, in the case of Designated Senior Debt Indebtedness for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior DebtIndebtedness) (a “Payment Default”"PAYMENT DEFAULT"); or
(ii) a default, other than a Payment Default, on any Designated Senior Debt Indebtedness occurs and is continuing that then permits holders of, or the trustee or agent on behalf of the holders of, such Designated Senior Debt or a Representative thereof Indebtedness to accelerate its maturitymaturity (or in the case of any lease that is Designated Senior Indebtedness, a default occurs and is continuing that then permits the lessor to either terminate the lease or require the Company to make an irrevocable offer to terminate the lease following an event of default thereunder) and the Trustee receives a notice of the default (a “Payment Blockage Notice”"PAYMENT BLOCKAGE NOTICE") from a holder of Designated Senior Debt, Indebtedness or a Representative of Designated Senior Debt or the Company Indebtedness (a “"NON-PAYMENT DEFAULT"). If the Trustee receives any Payment Blockage Notice pursuant to clause (ii) above, no subsequent Payment Blockage Notice shall be effective for purposes of this Section 4.02 unless and until at least 360 days shall have elapsed since the initial effectiveness of the immediately prior Payment Blockage Notice. No Non-Payment Default”). Notwithstanding Default that existed or was continuing on the foregoing, only one date of delivery of any Payment Blockage Notice with respect (to the same event extent the holder or the Representative of default or any other events Designated Senior Indebtedness giving such notice had knowledge of default existing or continuing (whether such events are known or unknown the same) to the Person giving Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the DebenturesDebentures (including, but not limited to, the Redemption Price with respect to Debentures called for redemption in accordance with Section 3.02 or Repurchase Price with respect to Debentures submitted for repurchase in accordance with Section 3.05) upon the earlier of:
(1) in the case of a Payment Default, upon the date on upon which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default default is cured or waived or ceases to exist or (b) 180 179 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt Indebtedness has not been acceleratedaccelerated (or in the case of any lease, in each case 179 days after notice is received if the Company has not received notice that the lessor under such lease has exercised its right to terminate the lease or require the Company to make an irrevocable offer to terminate the lease following an event of default thereunder), unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt and Senior Subordinated Indebtedness shall first be paid in full in cash (including interest after the commencement of any such proceeding at the rate specified in the applicable debt agreement or other payment satisfactory to the holders of document, whether or not allowed as a claim in such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debtproceeding) before any payment is made on account of the principal of, interest on premium, if any, or any other amounts due Interest on the Debentures (except payments made pursuant to Article 13 14 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, except for the provisions of this Article 4, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt and Senior Subordinated Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Debt and Senior Subordinated Indebtedness held by such holders, or as otherwise required by law or a court order) or their Representative or Representatives, as their respective interests may appear, to the extent necessary to pay all Senior Debt and Senior Subordinated Indebtedness in full, full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)cash, after giving effect to any concurrent payment or distribution to or for the holders of Senior Debtand Senior Subordinated Indebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. For purposes of this Article 4, the words, “cash"CASH, property or securities” PROPERTY OR SECURITIES" shall not be deemed to include shares of stock Common Stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt and Senior Subordinated Indebtedness which may at the time be outstanding outstanding; provided that (i) the Senior Debt and Senior Subordinated Indebtedness is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt and Senior Subordinated Indebtedness (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 12 13 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 1213. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder holder of Debentures in respect of the principal of, premium, if any, or interest Interest on the Debentures (including, but not limited to, the redemption price Redemption Price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance 3.02 or Repurchase Price with Section 3.05 or respect to Debentures submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture3.05), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt and Senior Subordinated Indebtedness has been paid in full in cash (including interest after the commencement of any such proceeding at the rate specified in the applicable debt agreement or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt document, whether or not allowed as a claim in the case such Senior Debt includes Designated Senior Debtproceeding) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or or, at the Company's request and expense, the Trustee shall promptly notify holders of Senior Debt and Senior Subordinated Indebtedness of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders holders of the Debentures before all Senior Debt and Senior Subordinated Indebtedness is paid in full in cash (including interest after the commencement of any such proceeding at the rate specified in the applicable debt agreement or other payment satisfactory to the holders of document, whether or not allowed as a claim in such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), proceeding) or provision is made for such payment thereof in accordance with its terms in cash (including interest after the commencement of any such proceeding at the rate specified in the applicable debt agreement or other payment satisfactory document, whether or not allowed as a claim in such proceeding), to the holders extent that the Trustee or any holder of such the Debentures has acquired written notice that all Senior Debt (and satisfactory to the holders of Designated Senior Debt Subordinated Indebtedness has not been paid in the case such Senior Debt includes Designated Senior Debt)full, such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt and Senior Subordinated Indebtedness or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all any Senior Debt and Senior Subordinated Indebtedness remaining unpaid to the extent necessary to pay all Senior Debt and Senior Subordinated Indebtedness in full in cash (including interest after the commencement of any such proceeding at the rate specified in the applicable debt agreement or other payment satisfactory to the holders of document, whether or not allowed as a claim in such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debtproceeding), after giving effect to any concurrent payment or distribution, or provision therefor, distribution to or for the holders of such Senior Debtand Senior Subordinated Indebtedness. Nothing in this Section 4.02 Article 4 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.068.03 or Section 9.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
Appears in 2 contracts
Samples: Indenture (Williams Companies Inc), Indenture (Williams Companies Inc)
Payments to Debentureholders. No direct or indirect payment shall be made with respect to the principal of, interest on or any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made Guaranty by the Trustee as permitted by the first or second paragraph of Section 4.05Guarantor, if:
if there shall have occurred and be continuing (ia) a any default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated interest on any Guarantor Senior Debt occurs and is Indebtedness continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Guarantor Senior Debt) (a “Payment Default”); or
(ii) a default, other than a Payment Default, on any Designated Senior Debt occurs and is continuing that permits holders of, or the trustee or agent on behalf of the holders of, such Designated Senior Debt or a Representative thereof to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Payment Blockage Notice Indebtedness with respect to Guarantor Senior Indebtedness, or (b) any other default with respect to any Guarantor Senior Indebtedness permitting the same acceleration thereof and such default is the subject of a judicial proceeding or the Guarantor receives notice of such a default from the holders of an aggregate of not less than $5,000,000 aggregate principal amount of such Guarantor Senior Indebtedness (PROVIDED, HOWEVER, that in the case of Guarantor Senior Indebtedness issued pursuant to an indenture such notice may be validly given only by the trustee under such indenture), unless and until such default or event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default shall have been cured or waived for a period of not less than 90 consecutive daysor shall have ceased to exist. No new payment blockage period may be commenced by the holders of Designated Senior Debt during Upon any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect acceleration of the Debentures:
(1) in principal of the case of a Payment Default, upon the date on which any such Payment Default is cured Debentures or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the CompanyGuarantor, or distribution of assets of the Company Guarantor of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding winding-up or liquidation or reorganization of the CompanyGuarantor, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Guarantor Senior Debt Indebtedness shall first be paid in full in cash money or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)money's worth, or payment thereof provided for in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made by the Guarantor pursuant to the Guaranty on account of the principal ofof (and premium, if any) or interest on or any other amounts due on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), Debentures; and upon any such dissolution or winding winding-up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Defaultreorganization, any payment by the CompanyGuarantor, or distribution of assets of the Company Guarantor of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, entitled pursuant to or with respect to the Guaranty except for the provisions of this Article 4Seventeen, shall (except as aforesaid) be paid by the Company Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Guarantor Senior Debt Indebtedness (pro rata to such holders on the basis of the respective amounts of Guarantor Senior Debt Indebtedness held by such holders, or as otherwise required calculated by law or a court orderthe Guarantor) or their Representative representative or Representativesrepresentatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Guarantor Senior Debt Indebtedness in full, full in cash money or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)money's worth, after giving effect to any concurrent payment or distribution to or for the holders of Guarantor Senior DebtIndebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the TrusteeTrustee pursuant to the Guaranty. For purposes In the event that, notwithstanding the foregoing, any payment by or distribution of this Article 4assets of the Guarantor of any kind or character, the words, “whether in cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt which may at the time be outstanding provided that (i) the Senior Debt is assumed prohibited by the new corporationforegoing, if any, resulting from any reorganization shall be received by the Trustee or readjustment, and (ii) the rights of the holders of the Debentures before all Guarantor Senior Debt (other than leases which are not assumed by Indebtedness is paid in full in money or money's worth, or provision is made for such payment, and if such fact shall then have been made known to a Responsible Officer of the Company or the new corporationTrustee or, as the case may be) are not, without such Debentureholder, then and in such event such payment or distribution shall be paid over or delivered to the consent holders of Guarantor Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all Guarantor Senior Indebtedness remaining unpaid to the extent necessary to pay all Guarantor Senior Indebtedness in full in money or money's worth, after giving effect to any concurrent payment or distribution to or for the holders of such holdersGuarantor Senior Indebtedness (but subject to the power of a court of competent jurisdiction to make other equitable provision, altered which shall have been determined by such court to give effect to the rights conferred in this Article Seventeen upon the Guarantor Senior Indebtedness and the holders thereof with respect to Debentures or the holders thereof or the Trustee, by a lawful plan of reorganization or readjustmentreadjustment under applicable bankruptcy law). The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another corporation or the liquidation or dissolution of the Company Guarantor following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 Section 17.12 hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 17.03 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12Section 17.12 hereof. In The holders of Guarantor Senior Indebtedness may, at any time and from time to time, without the event consent of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory notice to the holders of Senior Debt (and satisfactory the Debentures, without incurring responsibility to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) Debentures and without impairing or such acceleration is rescinded in accordance with releasing the terms obligations of this Indenture. If payment the holders of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory hereunder to the holders of such Guarantor Senior Debt Indebtedness: (and satisfactory to i) change the holders manner, place or terms of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by change or extend the recipient in trust for the benefit time of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt. Nothing in this Section 4.02 shall apply to claims of, or payments torenew or alter, Guarantor Senior Indebtedness, or otherwise amend in any manner Guarantor Senior Indebtedness or any instrument evidencing the Trustee same or any agreement under which Guarantor Senior Indebtedness is outstanding; (ii) sell, exchange, release or pursuant to Section 8.06. This Section 4.02 shall be subject to otherwise deal with any property pledged, mortgaged or otherwise securing Guarantor Senior Indebtedness; (iii) release any Person liable in any manner for the further provisions collection of Section 4.05Guarantor Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Guarantor and any other Person.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Seagate Technology Inc), Second Supplemental Indenture (Seagate Technology Inc)
Payments to Debentureholders. No payment shall be made with respect to In the principal of, interest on or event and during the continuation of any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(i) a default in the payment of principal, premium, if any, interest, rent interest or any other obligations in respect of Designated payment due on any Senior Debt occurs and is Indebtedness continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a defaultIndebtedness, other than a Payment Defaultthen, on any Designated Senior Debt occurs unless and is continuing that permits holders of, or the trustee or agent on behalf of the holders of, until such Designated Senior Debt or a Representative thereof to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default shall have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, shall have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases ceased to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received no payment shall be made by the Company with respect to the principal of, or premium, if any, or interest on the Debentures, except payments made pursuant to Article XIII hereof from monies deposited with the Trustee if pursuant thereto prior to the maturity happening of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distributiondefault. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt Indebtedness shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)full, or payment thereof provided for in money in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made on account of the principal of(and premium, if any) or interest on or any other amounts due on the Debentures (except payments made pursuant to Article 13 XIII hereof from monies deposited with the Trustee pursuant thereto prior to commencement the happening of proceedings for such dissolution, winding winding-up, liquidation or reorganization), ; and upon any such dissolution or winding winding-up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, except for the provisions of this Article 4IV, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Debt Indebtedness held by such holders, or as otherwise required calculated by law or a court orderthe Company) or their Representative representative or Representativesrepresentatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt Indebtedness in full, in cash money or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)money's worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior DebtIndebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. By reason of such subordination, in the event of the Company's dissolution, holders of Senior Indebtedness may receive more, ratably, and holders of the Debentures may receive less, ratably, than the other creditors of the Company. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee or the holders of the Debentures before all Senior Indebtedness is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness. For purposes of this Article 4IV, the words, “"cash, property or securities” " shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 IV with respect to the Debentures to the payment of all Senior Debt Indebtedness which may at the time be outstanding outstanding; provided that (i) the Senior Debt Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Debt Indebtedness (other than leases) and of leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 XII hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 4.2 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior DebtXII hereof. Nothing in this Section 4.02 4.2 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.058.6.
Appears in 2 contracts
Samples: Indenture (Omnicom Group Inc), Indenture (Omnicom Group Inc)
Payments to Debentureholders. No payment shall be made with respect to by the Company on account of principal ofof (or premium, if any) or interest on or any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion on account of the Debentures in accordance with Article 15purchase or other acquisition of Debentures, as the case may be, as provided in this Indenture), except payments if there shall have occurred and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
be continuing (ia) a any default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated interest on any Senior Debt occurs and is Indebtedness continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a default, other than a Payment Default, on any Designated Indebtedness with respect to Senior Debt occurs and is continuing that permits holders ofIndebtedness in an aggregate principal amount of at least $5,000,000, or (b) any other default with respect to any Senior Indebtedness permitting the trustee or agent on behalf acceleration thereof and such default is the subject of the holders of, such Designated Senior Debt or a Representative thereof to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt judicial proceeding or the Company (receives notice of such a “Non-Payment Default”default from the holders of an aggregate of not less than $5,000,000 aggregate principal amount of such Senior Indebtedness; PROVIDED, HOWEVER, that in the case of Senior Indebtedness issued pursuant to an indenture such notice may be validly given only by the trustee under such indenture). Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same unless and until such default or event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default shall have been cured or waived for a period of or shall have ceased to exist; PROVIDED, HOWEVER. that the foregoing shall not less than 90 consecutive daysprohibit payments made pursuant to Article Thirteen hereof from monies deposited with the Trustee pursuant thereto prior to such judicial proceeding or notice. No new payment blockage period may be commenced by the holders of Designated Senior Debt during Upon any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect acceleration of the Debentures:
(1) in principal of the case of a Payment Default, upon the date on which any such Payment Default is cured Debentures or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt Indebtedness shall first be paid in full in cash money or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)money's worth, or payment thereof provided for in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made on account of the principal ofof (and premium, if any) or interest on or any other amounts due on the Debentures (except payments made pursuant to Article 13 Thirteen hereof from monies deposited with the Trustee pursuant thereto prior to commencement the happening of proceedings for such dissolution, winding winding-up, liquidation or reorganization), ; and upon any such dissolution or winding winding-up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Defaultreorganization, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, entitled except for the provisions of this Article 4Four, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Debt senior Indebtedness held by such holders, or as otherwise required calculated by law or a court orderthe Company) or their Representative representative or Representativesrepresentatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt Indebtedness in full, full in cash money or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)money's worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior DebtIndebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. For purposes In the event that, notwithstanding the foregoing, any payment by or distribution of this Article 4assets of the Company of any kind or character, the words, “whether in cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt which may at the time be outstanding provided that (i) the Senior Debt is assumed prohibited by the new corporationforegoing, if any, resulting from any reorganization shall be received by the Trustee or readjustment, and (ii) the rights of the holders of the Debentures before all Senior Debt (other than leases which are not assumed by Indebtedness is paid in full in money or money's worth, or provision is made for such payment, and if a Responsible Officer of the Company or the new corporationTrustee or, as the case may be) are not, without the consent such Debentureholder, shall have actual knowledge of such holdersfact, altered then and in such event such payment or distribution shall be paid over or delivered to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all senior Indebtedness remaining unpaid to the extent necessary to pay all senior Indebtedness in full in money or money's worth, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness (but subject to the power of a court of competent jurisdiction to make other equitable provision, which shall have been determined by such court to give effect to the rights conferred in this Article Four upon the Senior Indebtedness and the holders thereof with respect to Debentures or the holders thereof or the Trustee, by a lawful plan of reorganization or readjustmentreadjustment under applicable bankruptcy law). The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 Twelve hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior DebtTwelve hereof. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject The holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the further provisions holders of Section 4.05the Debentures, without incurring responsibility to the holders of the Debentures and without impairing or releasing the obligations of the holders of the Debentures hereunder to the holders of Senior Indebtedness: (i) change the manner, place or terms of payment or change or extend the time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any Person liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company and any other Person.
Appears in 1 contract
Samples: Indenture (Schuler Holdings Inc)
Payments to Debentureholders. No payment shall be made with respect to the principal of, premium, if any, or interest on or any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase redemption in accordance with Section 3.02, 3.02 or submitted for purchase redemption in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 153.05, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(i) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Senior Debt Indebtedness occurs and is continuing (or, in the case of Designated Senior Debt Indebtedness for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior DebtIndebtedness) (a “"Payment Default”"); or
(ii) a default, other than a Payment Default, on any Designated Senior Debt Indebtedness occurs and is continuing that then permits holders of such Designated Senior Indebtedness to accelerate its maturity (or in the case of any lease that is Designated Senior Indebtedness, a default occurs and is continuing that permits holders of, the lessor to either terminate the lease or require the trustee or agent on behalf Company to make an irrevocable offer to terminate the lease following an event of the holders of, such Designated Senior Debt or a Representative thereof to accelerate its maturity, default thereunder) and the Trustee receives a notice of the default (a “"Payment Blockage Notice”") from a holder of Designated Senior Debt, Indebtedness or a Representative of Designated Senior Debt or the Company Indebtedness (a “"Non-Payment Default”"). Notwithstanding If the foregoing, only one Trustee receives any Payment Blockage Notice with respect pursuant to clause (ii) above, no subsequent Payment Blockage Notice shall be effective for purposes of this Section 4.02 unless and until at least 365 days shall have elapsed since the same event initial effectiveness of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the immediately prior Payment Blockage Notice) at the time of notice . No Non-Payment Default that existed or was continuing on the same issue date of Designated Senior Debt may delivery of any Payment Blockage Notice to the Trustee shall be, or be given during any period of 360 consecutive days unless made, the event of default or other events of default have been cured or waived basis for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding subsequent Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the DebenturesDebentures (including, but not limited to, the redemption price with respect to the Debentures to be redeemed) upon the earlier of:
(1) in the case of a Payment Default, upon the date on upon which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default default is cured or waived or ceases to exist or (b) 180 179 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt Indebtedness has not been acceleratedaccelerated (or in the case of any lease, in each case 179 days after notice is received if the Company has not received notice that the lessor under such lease has exercised its right to terminate the lease or require the Company to make an irrevocable offer to terminate the lease following an event of default thereunder), unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt Indebtedness shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) Indebtedness before any payment is made on account of the principal of, premium, if any, or interest on or any other amounts due (including Liquidated Damages, if any) on the Debentures (except payments made pursuant to Article 13 14 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, except for the provisions of this Article 4, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Debt Indebtedness held by such holders, or as otherwise required by law or a court order) or their Representative or Representatives, as their respective interests may appear, to the extent necessary to pay all Senior Debt Indebtedness in full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders of Senior DebtIndebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. For purposes of this Article 4, the words, “cash"Cash, property Property or securities” Securities" shall not be deemed to include shares of stock Common Stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt Indebtedness which may at the time be outstanding outstanding; provided that (i) the Senior Debt Indebtedness is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt Indebtedness (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 12 13 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 1213. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder holder of Debentures in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, 3.02 or submitted for purchase redemption in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 153.05, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt Indebtedness has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) Indebtedness or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or or, at the Company’s request and expense, the Trustee shall promptly notify holders of Senior Debt Indebtedness of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders holders of the Debentures before all Senior Debt Indebtedness is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Indebtedness, or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory Indebtedness, to the holders extent that the Trustee or any holder of Designated the Debentures has acquired notice, by whatever means, that all Senior Debt Indebtedness has not been paid in the case such Senior Debt includes Designated Senior Debt)full, such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt Indebtedness or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all any Senior Debt Indebtedness remaining unpaid to the extent necessary to pay all Senior Debt Indebtedness in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Indebtedness, after giving effect to any concurrent payment or distribution, or provision therefor, distribution to or for the holders of such Senior DebtIndebtedness. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.069.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
Appears in 1 contract
Payments to Debentureholders. No payment payments on account of principal of, Change of Control purchase price, or interest on the Debentures shall be made if at the time of such payment or immediately after giving effect thereto there shall exist a default in any payment with respect to any Senior and Subordinated Debt, and such event of default shall not have been cured or waived or shall not have ceased to exist. In addition, during the principal of, interest on or continuance of any other amounts due event of default (other than a payment 68 75 default) with respect to Designated Senior and Subordinated Debt pursuant to which the maturity thereof may be accelerated, from and after the date of receipt by the Trustee of written notice from the holders of such Designated Senior and Subordinated Debt or from an agent of such holders, no payments on account of Principal, Change of Control purchase price, or interest in respect of the Debentures may be made by the Company for a period ("Payment Blockage Period") commencing on the Debentures date of delivery of such notice and ending 179 days thereafter (includingunless such Payment Blockage Period shall be terminated by written notice to the Trustee from the holders of such Designated Senior and Subordinated Debt or from an agent of such holders, but not limited to, the redemption price or such event of default has been cured or waived or has ceased to exist). Only one Payment Blockage Period may be commenced with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(i) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Senior Debt occurs and is continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a default, other than a Payment Default, on any Designated Senior Debt occurs and is continuing that permits holders of, or the trustee or agent on behalf of the holders of, such Designated Senior Debt or a Representative thereof to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the days. No event of default which existed or other events was continuing on the date of the commencement of any Payment Blockage Period with respect to the Designated Senior and Subordinated Debt initiating such Payment Blockage Period shall be or be made the basis for the commencement of any subsequent Payment Blockage Period by the holders of such Designated Senior and Subordinated Debt, unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution liquidation, dissolution, winding up, receivership, reorganization, assignment for the benefit of creditors, marshalling of assets and liabilities or winding up any bankruptcy, insolvency or liquidation or reorganization similar proceedings of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior and Subordinated Debt shall first be paid in full full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)cash equivalents, or payment thereof provided for in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made on account of the principal Principal of, Change of Control purchase price, or interest on or the indebtedness evidenced by the Debentures, and upon any other amounts due on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such liquidation, dissolution, winding up, liquidation receivership, reorganization, assignment, marshalling or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders or the Trustee under this Indenture would be entitled, except for the provisions of this Article 4hereof, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior and Subordinated Debt (pro rata to such holders on the basis of the respective amounts of Senior and Subordinated Debt held by such holders, or as otherwise required by law or a court order) or their Representative respective representatives, or Representativesto the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior and Subordinated Debt may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior and Subordinated Debt in fullfull (including, without limitation, except to the extent, if any, prohibited by mandatory provisions of law, post-petition interest, in cash or other payment satisfactory to the holders of any such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debtproceedings), after giving effect to any concurrent payment or distribution to or for the holders of Senior and Subordinated Debt, before any payment or distribution is made to the Debentureholders holders of the indebtedness evidenced by the Debentures or to the TrusteeTrustee under this Indenture. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee under this Indenture or the holders of the Securities before all Senior and Subordinated Debt is paid in full or provision is made for such payment in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior and Subordinated Debt or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior and Subordinated Debt may have been issued, as their respective interests may appear, for application to the payment of all Senior and Subordinated Debt remaining unpaid until all such Senior and Subordinated Debt shall have been paid in full in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior and Subordinated Debt. For purposes of this Article 4Article, the words, “"cash, property or securities” " shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of arrangement, reorganization or readjustment, the payment of which is subordinated (at least to the extent provided in this Article 4 with respect to the Debentures Securities) to the payment of all Senior and Subordinated Debt which may at the time be outstanding provided outstanding; provided, that (i) the Senior and Subordinated Debt is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the holders of the Senior and Subordinated Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 10 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt10. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06Article 7, except as provided therein. This Section 4.02 shall be subject to the further provisions of Section 4.0514.05.
Appears in 1 contract
Payments to Debentureholders. No payment or distributions shall be made with respect to the principal of, interest on or any other amounts due on indebtedness evidenced by the Debentures (includingnor shall the Company acquire any Debentures for cash, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 property or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture)securities, except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.055.05 or by Section 5.08, if:
(i) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Senior Debt Indebtedness occurs and is continuing (or, in the case of Designated Senior Debt Indebtedness for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior DebtIndebtedness) (a “"Payment Default”"); or
(ii) a default, other than a Payment Default, on any Designated Senior Debt Indebtedness occurs and is continuing that then permits holders of such Senior Indebtedness to accelerate its maturity (or in the case of any lease that constitutes Senior Indebtedness, a default occurs and is continuing that permits holders of, the lessor to either terminate the lease or require the trustee or agent on behalf Company to make an irrevocable offer to terminate the lease following an event of the holders of, such Designated Senior Debt or default thereunder) (a Representative thereof to accelerate its maturity, "Non-Payment Default") and the Trustee receives a notice of the default (a “"Payment Blockage Notice”") from a holder of Designated Senior Debt, Indebtedness or a Representative of Designated Senior Debt or Indebtedness. If the Company Trustee receives any Payment Blockage Notice pursuant to clause (a “ii) above, no subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and until at least 360 days shall have elapsed since the initial effectiveness of the immediately prior Payment Blockage Notice. No Non-Payment Default”). Notwithstanding Default that existed or was continuing on the foregoing, only one date of delivery of any Payment Blockage Notice with respect to the same event of default Trustee shall be, or any other events of default existing or continuing (whether such events are known or unknown to be made, the Person giving the basis for a subsequent Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days Notice unless the event of such default or other events of default shall have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect to the indebtedness evidenced by the Debentures (including, but not limited to, the applicable Redemption Price, with respect to the Debentures to be called for redemption) and may resume acquisition of Debentures for cash, property or securities upon the Debenturesearlier of:
(1) in the case of a Payment Default, upon the date on upon which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default default is cured or waived or ceases to exist or (b) 180 179 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt Indebtedness has not been acceleratedaccelerated (or in the case of any lease, in each case 179 days after notice is received if the Company has not received notice that the lessor under such lease has exercised its right to terminate the lease or require the Company to make an irrevocable offer to terminate the lease following an event of default thereunder) unless this Article 4 5 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of the assets of the Company of any kind or character, whether in cash, property or securitiesCompany, to creditors upon any dissolution or winding up or liquidation or reorganization of the Company, whether voluntary or involuntary involuntary, or in bankruptcy, insolvency, receivership or other proceedings, proceedings relating to the Company or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Defaultits property, all amounts due or to become due upon all Senior Debt Indebtedness shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) Indebtedness before any payment or distribution is made on account of the principal of, interest on or any other amounts due on with respect to indebtedness evidenced by the Debentures (except payments made pursuant to Article 13 Section 14.02 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of the assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, in respect to indebtedness evidenced by these Debentures except for the provisions of this Article 45, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Debt Indebtedness held by such holders, or as otherwise required by agreement, contract, law or a court order) or their Representative or Representatives, as their respective interests may appear, to the extent necessary to pay all Senior Debt Indebtedness in full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders of Senior DebtIndebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. For purposes of this Article 4, the words, “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt which may at the time be outstanding provided that (i) the Senior Debt is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 12 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
Appears in 1 contract
Samples: Indenture (Lucent Technologies Inc)
Payments to Debentureholders. No payment shall be made with respect to the principal of, or premium, if any, or interest on or any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may beredeemed, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.054.5, if:
(ia) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated due on any Senior Debt Indebtedness occurs and is continuing (or, in the case of Designated Senior Debt Indebtedness for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”Indebtedness), unless and until such default shall have been cured or waived or shall have ceased to exist; or
(iib) a default, other than a Payment Defaultpayment default, on any a Designated Senior Debt Indebtedness occurs and is continuing that then permits holders of, or the trustee or agent on behalf of the holders of, such Designated Senior Debt or a Representative thereof Indebtedness to accelerate its maturity, maturity and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a the Company or holder of Designated Senior Debt, a or Representative of Designated Senior Debt or Indebtedness. If the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Trustee receives any Payment Blockage Notice with respect pursuant to the same event of default or any other events of default existing or continuing clause (whether such events are known or unknown to the Person giving the b) above, no subsequent Payment Blockage NoticeNotice shall be effective for purposes of this Section unless and until (A) at least 365 days shall have elapsed since the time effectiveness of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding immediately prior Payment Blockage Notice, and any other event (B) all scheduled payments of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) before any payment is made on account of the principal of, interest on or any other amounts due on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders or the Trustee would be entitled, except for the provisions of this Article 4, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders, or as otherwise required by law or a court order) or their Representative or Representatives, as their respective interests may appear, to the extent necessary to pay all Senior Debt in full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt, before any payment or distribution is made to the Debentureholders or to the Trustee. For purposes of this Article 4, the words, “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt which may at the time be outstanding provided that (i) the Senior Debt is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 12 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal ofprincipal, premium, if any, or and interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has that have come due have been paid in full in cash cash. No nonpayment default that existed or other payment satisfactory was continuing on the date of delivery of any Payment Blockage Notice to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)be, or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt. Nothing in this Section 4.02 shall apply to claims of, or payments tomade, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05basis for a subsequent Payment Blockage Notice.
Appears in 1 contract
Samples: Indenture (Xcyte Therapies Inc)
Payments to Debentureholders. No payment shall be made with respect to the principal of, interest on premium, if any, or any other amounts due Additional Interest, if any, on the Debentures (including, but not limited to, the redemption price Redemption Price, Principal Return, Repurchase Price or Fundamental Change Repurchase Price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(ia) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Senior Debt Indebtedness occurs and is continuing (or, in the case of Designated Senior Debt for which there is a beyond any applicable period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) grace (a “"PAYMENT DEFAULT"), unless and until such Payment Default”)Default shall have been cured or waived or shall have ceased to exist; or
(iib) a default, other than a Payment Default, on any Designated Senior Debt Indebtedness occurs and is continuing that then permits holders of such Designated Senior Indebtedness to accelerate its maturity, or in the case of a lease, a default occurs and is continuing that permits holders of, the lessor to either terminate the lease or require the trustee or agent on behalf of Company to make an irrevocable offer to terminate the holders of, such Designated Senior Debt or a Representative thereof to accelerate its maturitylease, and the Trustee receives a written notice of the default (a “Payment Blockage Notice”"PAYMENT BLOCKAGE NOTICE") from a holder of Designated Senior DebtIndebtedness, a Representative of Designated Senior Debt Indebtedness or the Company (a “"NON-PAYMENT DEFAULT"). If the Trustee receives any Payment Blockage Notice pursuant to clause (b) above, no subsequent Payment Blockage Notice shall be effective for purposes of this Section 4.02 unless and until at least 365 days shall have elapsed since the initial effectiveness of the immediately prior Payment Blockage Notice. No Non-Payment Default”). Notwithstanding Default that existed or was continuing on the foregoing, only one date of delivery of any Payment Blockage Notice with respect to the same event of default Trustee shall be, or any other events of default existing or continuing (whether such events are known or unknown to be made, the Person giving the basis for a subsequent Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures, including any past scheduled payments of the principal of, premium, if any, interest, including Additional Interest, if any, on such Debentures (including, but not limited to, the Redemption Price, Principal Return, Repurchase Price or Fundamental Change Repurchase Price with respect to Debentures as provided in this Indenture), to which the holders of the Debentures would have been entitled but for the provisions of this Article 4:
(1i) in the case of a Payment Default, upon on the date on upon which any such Payment Default is cured or waived or ceases to exist, orand
(2ii) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default default is cured or waived or ceases to exist or (b) 180 179 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt Indebtedness has not been accelerated, accelerated and no Payment Default with respect to any Designated Senior Indebtedness has occurred which has not been cured or waived or ceased to exist (in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distributionevent clause (1) above shall instead be applicable). Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt Indebtedness shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Indebtedness, or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) Indebtedness before any payment is made on account of the principal of, interest on premium, if any, interest, or any other amounts due Additional Interest, if any, on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), ; and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, except for the provisions provision of this Article 4, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Debt Indebtedness held by such holders, or as otherwise required by law or a court order) or their Representative or Representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt Indebtedness in full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders of Senior DebtIndebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. For purposes of this Article 4, the words, “"cash, property or securities” " shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt which Indebtedness that may at the time be outstanding outstanding; provided that (i) the Senior Debt is Indebtedness are assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder holder of Debentures in respect of the principal of, premium, if any, or interest interest, including Additional Interest, if any on the Debentures (including, but not limited to, the redemption price Redemption Price, Principal Return, Repurchase Price or the Fundamental Change Repurchase Price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this the Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has Indebtedness have been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) Indebtedness or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt Indebtedness of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders holders of the Debentures before all Senior Debt is Indebtedness are paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Indebtedness, or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Indebtedness, such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt Indebtedness or their Representative or Representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all any Senior Debt Indebtedness remaining unpaid to the extent necessary to pay all Senior Debt Indebtedness in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Indebtedness, after giving effect to any concurrent payment or distribution, or provision therefor, distribution to or for the holders of such Senior DebtIndebtedness. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
Appears in 1 contract
Payments to Debentureholders. No payment shall be made with ---------------------------- respect to the principal of, or premium, if any, or interest on or any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may beredeemed, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.054.5, if:
(ia) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated due on any Senior Debt Indebtedness occurs and is continuing (or, in the case of Designated Senior Debt Indebtedness for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”Indebtedness), unless and until such default shall have been cured or waived or shall have ceased to exist; or
(iib) a default, other than a Payment Defaultpayment default, on any a Designated Senior Debt Indebtedness occurs and is continuing that then permits holders of, or the trustee or agent on behalf of the holders of, such Designated Senior Debt or a Representative thereof Indebtedness to accelerate its maturity, maturity and the Trustee receives a notice of the default (a “"Payment Blockage Notice”") from a the Company or holder of Designated Senior Debt, a or Representative of Designated Senior Debt or Indebtedness. If the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Trustee receives any Payment Blockage Notice with respect pursuant to the same event of default or any other events of default existing or continuing clause (whether such events are known or unknown to the Person giving the b) above, no subsequent Payment Blockage NoticeNotice shall be effective for purposes of this Section unless and until (A) at least 365 days shall have elapsed since the time effectiveness of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding immediately prior Payment Blockage Notice, and any other event (B) all scheduled payments of default existing or continuing at principal, premium, if any, and interest on the time of such notice, Debentures that have come due have been waived paid in full in cash. No nonpayment default that existed or curedwas continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice. The Company may and shall resume payments on and distributions in respect of the DebenturesDebentures upon the earlier of:
(1) in the case of a Payment Default, upon the date on upon which any such Payment Default the default is cured or waived or ceases to existwaived, or
(2) in the case of a Non-Payment Defaultdefault referred to in clause (ii) above, the earlier of (ax) the date upon which such Non-Payment Default default is cured or waived or ceases to exist or and (by) 180 179 days pass after the applicable Payment Blockage Notice notice is received by the Trustee if the maturity of such Designated Senior Debt Indebtedness has not been accelerated, in each case unless this Article 4 IV otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding winding-up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt Indebtedness shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)full, or payment thereof provided for in money in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made on account of the principal of(and premium, if any) or interest on or any other amounts due on the Debentures (except payments made pursuant to Article 13 XIII from monies deposited with the Trustee pursuant thereto prior to commencement the happening of proceedings for such dissolution, winding winding-up, liquidation or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or such proceedings); and upon any acceleration of the Principal Amount due on the Debentures because of an Event of Defaultsuch dissolution or winding-up or liquidation or reorganization or bankruptcy, insolvency, receivership or other such proceedings, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee under this Indenture would be entitled, except for the provisions provision of this Article 4IV, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Debt Indebtedness held by such holders, holders or as otherwise required by law or a court order) or their respective Representative or Representatives, as their respective interests may appear, to the extent necessary to pay all Senior Debt Indebtedness in full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), full after giving effect to any concurrent payment or distribution to or for the holders of Senior DebtIndebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the TrusteeTrustee under this Indenture. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any holder of Debentures in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.2), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.5, until all Senior Indebtedness has been paid in full in cash or other payment satisfactory to the holders of Senior Indebtedness or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company shall promptly notify holders of Senior Indebtedness of such acceleration. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received by the Trustee under this Indenture or by any holders of the Debentures before all Senior Indebtedness is paid in full, or provision is made for such payment in accordance with its terms, such payment or distribution shall be held by the recipient or recipients in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness or their respective Representative or Representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in accordance with its terms, after giving effect to any concurrent payment or distribution (or provision therefor) to or for the holders of such Senior Indebtedness. For purposes of this Article 4IV, the words, “words "cash, property or securities” " shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated (at least to the extent provided in this Article 4 IV with respect to the Debentures Debentures) to the payment of all Senior Debt Indebtedness which may at the time be outstanding outstanding; provided that (i) the Senior Debt Indebtedness is assumed by the new -------- corporation, if any, resulting from any such reorganization or readjustmentadjustment, and (ii) the rights of the holders of Senior Debt Indebtedness (other than leases which are not assumed by the Company or by the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 XII shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 4.2 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior DebtXII. Nothing in this Section 4.02 4.2 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.068.6. This Section 4.02 4.2 shall be subject to the further provisions of Section 4.054.5.
Appears in 1 contract
Payments to Debentureholders. No payment of cash shall be made with respect to the principal of, interest on or any other amounts due on the Debentures (including, but not limited to, the redemption price any amount due with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 3.04 or submitted for repurchase in accordance with Section 3.06 3.05 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(i) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Senior Debt occurs and is continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a default, other than a Payment Default, on any Designated Senior Debt occurs and is continuing that permits holders of, or the trustee or agent on behalf of the holders of, such Designated Senior Debt or a Representative thereof to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) before any payment is made on account of the principal of, interest on or any other amounts due on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders or the Trustee would be entitled, except for the provisions of this Article 4, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders, or as otherwise required by law or a court order) or their Representative or Representatives, as their respective interests may appear, to the extent necessary to pay all Senior Debt in full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt, before any payment or distribution is made to the Debentureholders or to the Trustee. For purposes of this Article 4, the words, “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt which may at the time be outstanding provided that (i) the Senior Debt is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 12 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 3.04 or submitted for repurchase in accordance with Section 3.06 3.05 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
Appears in 1 contract
Samples: Indenture (Mentor Graphics Corp)
Payments to Debentureholders. No payment payments on account of principal of, premium, if any, or interest on the Debentures shall be made if at the time of such payment or immediately after giving effect thereto there shall exist a default in any payment with respect to any Senior and Subordinated Debt, and such event of default shall not have been cured or waived or shall not have ceased to exist. In addition, during the principal of, interest on or continuance of any other amounts due on the Debentures event of default (including, but not limited to, the redemption price other than a payment default) with respect to Designated Senior and Subordinated Debt pursuant to which the Debentures to maturity thereof may be called for repurchase in accordance with Section 3.02accelerated, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion from and after the date of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made receipt by the Trustee as permitted by of written notice from the first holders of such Designated Senior and Subordinated Debt or second paragraph from an agent of Section 4.05such holders, if:
(i) a default in the payment no payments on account of principal, premium, if any, interest, rent or other obligations interest in respect of Designated Senior Debt occurs and is continuing (or, in the case of Designated Senior Debt Debentures may be made by the Company for which there is a period ("Payment Blockage Period") commencing on the date of grace, in the event delivery of such a default that continues beyond notice and ending 179 days thereafter (unless such Payment Blockage Period shall be terminated by written notice to the period Trustee from the holders of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a default, other than a Payment Default, on any Designated Senior and Subordinated Debt occurs and is continuing that permits holders ofor from an agent of such holders, or the trustee such event of default has been cured or agent on behalf of the holders of, such Designated Senior Debt waived or a Representative thereof has ceased to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”exist). Notwithstanding the foregoing, only Only one Payment Blockage Notice Period may be commenced with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given Debentures during any period of 360 consecutive days unless the days. No event of default which existed or other events was continuing on the date of the commencement of any Payment Blockage Period with respect to the Designated Senior and Subordinated Debt initiating such Payment Blockage Period shall be or be made the basis for the commencement of any subsequent Payment Blockage Period by the holders of such Designated Senior and Subordinated Debt, unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution liquidation, dissolution, winding up, receivership, reorganization, assignment for the benefit of creditors, marshalling of assets and liabilities or winding up any bankruptcy, insolvency or liquidation or reorganization similar proceedings of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior and Subordinated Debt shall first be paid in full full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)cash equivalents, or payment thereof provided for in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made on account of the principal of, premium, if any, or interest on or the indebtedness evidenced by the Debentures, and upon any other amounts due on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such liquidation, dissolution, winding up, liquidation receivership, reorganization, assignment, marshalling or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders or the Trustee under this Indenture would be entitled, except for the provisions of this Article 4hereof, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior and Subordinated Debt (pro rata to such holders on the basis of the respective amounts of Senior and Subordinated Debt held by such holders, or as otherwise required by law or a court order) or their Representative respective representatives, or Representativesto the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior and Subordinated Debt may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior and Subordinated Debt in fullfull (including, without limitation, except to the extent, if any, prohibited by mandatory provisions of law, post-petition interest, in cash or other payment satisfactory to the holders of any such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debtproceedings), after giving effect to any concurrent payment or distribution to or for the holders of Senior and Subordinated Debt, before any payment or distribution is made to the Debentureholders holders of the indebtedness evidenced by the Debentures or to the TrusteeTrustee under this Indenture. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee under this Indenture or the holders of the Debentures before all Senior and Subordinated Debt is paid in full or provision is made for such payment in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior and Subordinated Debt or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior and Subordinated Debt may have been issued, as their respective interests may appear, for application to the payment of all Senior and Subordinated Debt remaining unpaid until all such Senior and Subordinated Debt shall have been paid in full in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior and Subordinated Debt. For purposes of this Article 4Article, the words, “"cash, property or securities” " shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of arrangement, reorganization or readjustment, the payment of which is subordinated (at least to the extent provided in this Article 4 with respect to the Debentures Debentures) to the payment of all Senior and Subordinated Debt which may at the time be outstanding provided outstanding; provided, that (i) the Senior and Subordinated Debt is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the holders of the Senior and Subordinated Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 10 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt10. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06Article 7, except as provided therein. This Section 4.02 shall be subject to the further provisions of Section 4.0514.05.
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Payments to Debentureholders. No payment shall be made with respect to In the principal of, interest on or event and during the continuation of any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(i) a default in the payment of principal, premium, if any, interest, rent interest or any other obligations in respect of Designated payment due on any Senior Debt occurs and is Indebtedness continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a defaultIndebtedness, other than a Payment Defaultthen, on any Designated Senior Debt occurs unless and is continuing that permits holders of, or the trustee or agent on behalf of the holders of, until such Designated Senior Debt or a Representative thereof to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default shall have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, shall have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases ceased to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received no payment shall be made by the Trustee Company with respect to the principal of, or premium, if any, or interest on the maturity Debentures, except sinking payments made by the acquisition of Debentures under Section 3.04 prior to the happening of such Designated Senior Debt has not been accelerated, in each case unless this default and payments made pursuant to Article 4 otherwise prohibits Thirteen hereof from monies deposited with the payment or distribution at Trustee pursuant thereto prior to the time happening of such payment or distributiondefault. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt Indebtedness shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)full, or payment thereof provided for in money in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made on account of the principal of(and premium, if any) or interest on or any other amounts due on the Debentures (except payments made pursuant to Article 13 Thirteen hereof from monies deposited with the Trustee pursuant thereto prior to commencement the happening of proceedings for such dissolution, winding winding-up, liquidation or reorganization), ; and upon any such dissolution or winding winding-up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, except for the provisions of this Article 4Four, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Debt Indebtedness held by such holders, or as otherwise required calculated by law or a court orderthe Company) or their Representative representative or Representativesrepresentatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt Indebtedness in full, in cash money or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)money's worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior DebtIndebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee or the holders of the Debentures before all Senior Indebtedness is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness. For purposes of this Article 4Four, the words, “"cash, property or securities” " shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 Four with respect to the Debentures to the payment of all Senior Debt Indebtedness which may at the time be outstanding provided outstanding; PROVIDED that (i) the Senior Debt Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Debt Indebtedness (other than leases) and of leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 Twelve hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior DebtTwelve hereof. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
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Payments to Debentureholders. No payment payments on account of principal of, premium, if any, or interest on the Debentures shall be made if at the time of such payment or immediately after giving effect thereto there shall exist a default in any payment with respect to any Senior and Subordinated Debt, and such event of default shall not have been cured or waived or shall not have ceased to exist. In addition, during the principal of, interest on or continuance of any other amounts due on the Debentures event of default (including, but not limited to, the redemption price other than a payment default) with respect to Designated Senior and Subordinated Debt pursuant to which the Debentures to maturity thereof may be called for repurchase in accordance with Section 3.02accelerated, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion from and after the date of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made receipt by the Trustee as permitted by of written notice from the first holders of such Designated Senior and Subordinated Debt or second paragraph from an agent of Section 4.05such holders, if:
(i) a default in the payment no payments on account of principal, premium, if any, interest, rent or other obligations interest in respect of Designated Senior Debt occurs and is continuing (or, in the case of Designated Senior Debt Debentures may be made by the Company for which there is a period ("Payment Blockage Period") commencing on the date of grace, in the event delivery of such a default that continues beyond notice and ending 179 days thereafter (unless such Payment Blockage Period shall be terminated by written notice to the period Trustee from the holders of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a default, other than a Payment Default, on any Designated Senior and Subordinated Debt occurs and is continuing that permits holders ofor from an agent of such holders, or the trustee such event of default has been cured or agent on behalf of the holders of, such Designated Senior Debt waived or a Representative thereof has ceased to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”exist). Notwithstanding the foregoing, only Only one Payment Blockage Notice Period may be commenced with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given Debentures during any period of 360 consecutive days unless the days. No event of default which existed or other events was continuing on the date of the commencement of any Payment Blockage Period with respect to the Designated Senior and Subordinated Debt initiating such Payment Blockage Period shall be or be made the basis for the commencement of any subsequent Payment Blockage Period by the holders of such Designated Senior and Subordinated Debt, unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. 66 Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution liquidation, dissolution, winding up, receivership, reorganization, assignment for the benefit of creditors, marshalling of assets and liabilities or winding up any bankruptcy, insolvency or liquidation or reorganization similar proceedings of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior and Subordinated Debt shall first be paid in full full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)cash equivalents, or payment thereof provided for in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made on account of the principal of, premium, if any, or interest on or the indebtedness evidenced by the Debentures, and upon any other amounts due on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such liquidation, dissolution, winding up, liquidation receivership, reorganization, assignment, marshalling or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders or the Trustee under this Indenture would be entitled, except for the provisions of this Article 4hereof, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior and Subordinated Debt (pro rata to such holders on the basis of the respective amounts of Senior and Subordinated Debt held by such holders, or as otherwise required by law or a court order) or their Representative respective representatives, or Representativesto the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior and Subordinated Debt may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior and Subordinated Debt in fullfull (including, without limitation, except to the extent, if any, prohibited by mandatory provisions of law, post-petition interest, in cash or other payment satisfactory to the holders of any such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debtproceedings), after giving effect to any concurrent payment or distribution to or for the holders of Senior and Subordinated Debt, before any payment or distribution is made to the Debentureholders holders of the indebtedness evidenced by the Debentures or to the TrusteeTrustee under this Indenture. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee under this Indenture or the holders of the Debentures before all Senior and Subordinated Debt is paid in full or provision is made for such payment in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior and Subordinated Debt or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior and Subordinated Debt may have been issued, as their respective interests may appear, for application to the payment of all Senior and Subordinated Debt remaining unpaid until all such Senior and Subordinated Debt shall have been paid in full in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior and Subordinated Debt. For purposes of this Article 4Article, the words, “"cash, property or securities” " shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of arrangement, reorganization or readjustment, the payment of which is subordinated (at least to the extent provided in this Article 4 with respect to the Debentures Debentures) to the payment of all Senior and Subordinated Debt which may at the time be outstanding provided outstanding; provided, that (i) the Senior and Subordinated Debt is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the holders of the Senior and Subordinated Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 10 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt10. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06Article 7, except as provided therein. This Section 4.02 shall be subject to the further provisions of Section 4.0514.05.
Appears in 1 contract
Payments to Debentureholders. No payment shall be made with respect to the principal of, interest on (including Liquidated Damages, if any) or any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(i) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Senior Debt occurs and is continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a default, other than a Payment Default, on any Designated Senior Debt occurs and is continuing that permits holders of, or the trustee or agent on behalf of the holders of, such Designated Senior Debt or a Representative thereof to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) before any payment is made on account of the principal of, interest on (including Liquidated Damages, if any) or any other amounts due on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders or the Trustee would be entitled, except for the provisions of this Article 4, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders, or as otherwise required by law or a court order) or their Representative or Representatives, as their respective interests may appear, to the extent necessary to pay all Senior Debt in full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt, before any payment or distribution is made to the Debentureholders or to the Trustee. For purposes of this Article 4, the words, “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt which may at the time be outstanding provided that (i) the Senior Debt is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 12 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest (including Liquidated Damages, if any) on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
Appears in 1 contract
Samples: Indenture (Mentor Graphics Corp)
Payments to Debentureholders. No payment shall be made with respect to In the principal of, interest on or event and during the continuation of any other amounts due on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(i) a default in the payment of principal, premium, if any, interest, rent interest or other obligations in respect of Designated rental on any Senior Debt occurs and is Indebtedness continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a defaultIndebtedness, other than a Payment Defaultthen, on any Designated Senior Debt occurs unless and is continuing that permits holders ofuntil such event shall have been cured or waived, or the trustee or agent on behalf of the holders ofshall have ceased to exist, such Designated Senior Debt or a Representative thereof to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or no payment shall be made by the Company (a “Non-Payment Default”). Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same event principal of, or premium, if any, or interest on the Debentures or as a sinking fund for the Debentures, except sinking fund payments made by the acquisition of default or any other events of default existing or continuing (whether such events are known or unknown Debentures under Section 3.04 prior to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time happening of such notice, have been waived or cured. The Company may default and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases made pursuant to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by Article Thirteen hereof from monies deposited with the Trustee if pursuant thereto prior to the maturity happening of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distributiondefault. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt Indebtedness shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)full, or payment thereof provided for in money in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made on account of the principal of(and premium, if any) or interest on or any other amounts due on the Debentures (except payments made pursuant to Article 13 Thirteen hereof from monies deposited with the Trustee pursuant thereto prior to commencement the happening of proceedings for such dissolution, winding winding-up, liquidation or reorganization), ; and upon any such dissolution or winding winding-up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders or holders of the Debentures of the Trustee would be entitled, except for the provisions of this Article 4Four, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Debt Indebtedness held by such holders, or as otherwise required by law or a court order) or their Representative representative or Representativesrepresentatives, or to the trustee or trustees under any Indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt Indebtedness in full, in cash money or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)money's worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior DebtIndebtedness, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee or the holders of the Debentures before all Senior Indebtedness is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness. For purposes of this Article 4Four, the words, “"cash, property or securities” " shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 Four with respect to the Debentures to the payment of all Senior Debt Indebtedness which may at the time be outstanding outstanding; provided that (i) the Senior Debt Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Debt Indebtedness (other than leases) and of leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 Twelve hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior DebtTwelve hereof. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
Appears in 1 contract
Samples: Indenture (SCS Transportation Inc)
Payments to Debentureholders. No payment payments on account of principal of, premium, if any, or interest on the Debentures shall be made if at the time of such payment or immediately after giving effect thereto there shall exist a default in any payment with respect to any Senior and Subordinated Debt, whether at maturity, upon redemption, by declaration or otherwise and such event of default shall not have been cured or waived or shall not have ceased to exist. In addition, during the principal of, interest on or continuance of any other amounts due on the Debentures event of default (including, but not limited to, the redemption price other than a payment default) with respect to Designated Senior and Subordinated Debt pursuant to which the Debentures to maturity thereof may be called for repurchase in accordance with Section 3.02accelerated, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion from and after the date of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made receipt by the Trustee as permitted by of written notice from the first holders of such Designated Senior and Subordinated Debt or second paragraph from an agent of Section 4.05such holders, if:
(i) a default in the payment no payments on account of principal, premium, if any, interest, rent or other obligations interest in respect of Designated Senior Debt occurs and is continuing (or, in the case of Designated Senior Debt Debentures may be made by the Company for which there is a period ("Payment Blockage Period") commencing on the date of grace, in the event delivery of such a default that continues beyond notice and ending 179 days thereafter (unless such Payment Blockage Period shall be terminated by written notice to the period Trustee from the holders of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a default, other than a Payment Default, on any Designated Senior and Subordinated Debt occurs and is continuing that permits holders ofor from an agent of such holders, or the trustee such event of default has been cured or agent on behalf of the holders of, such Designated Senior Debt waived or a Representative thereof has ceased to accelerate its maturity, and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment Default”exist). Notwithstanding the foregoing, only Only one Payment Blockage Notice Period may be commenced with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given Debentures during any period of 360 consecutive days unless the days. No event of default which existed or other events was continuing on the date of the commencement of any Payment Blockage Period with respect to the Designated Senior and Subordinated Debt initiating such Payment Blockage Period shall be or be made the basis for the commencement of any subsequent Payment Blockage Period by the holders of such Designated Senior and Subordinated Debt, unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Default, upon the date on which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been accelerated, in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution liquidation, dissolution, winding up, receivership, reorganization, assignment for the benefit of creditors, marshalling of assets and liabilities or winding up any bankruptcy, insolvency or liquidation or reorganization similar proceedings of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior and Subordinated Debt shall first be paid in full full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)cash equivalents, or payment thereof provided for in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) terms, before any payment is made on account of the principal of, premium, if any, or interest on or the indebtedness evidenced by the Debentures, and upon any other amounts due on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such liquidation, dissolution, winding up, liquidation receivership, reorganization, assignment, marshalling or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders or the Trustee under this Indenture would be entitled, except for the provisions of this Article 4hereof, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior and Subordinated Debt (pro rata to such holders on the basis of the respective amounts of Senior and Subordinated Debt held by such holders, or as otherwise required by law or a court order) or their Representative respective representatives, or Representativesto the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior and Subordinated Debt may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior and Subordinated Debt in fullfull (including, without limitation, except to the extent, if any, prohibited by mandatory provisions of law, post-petition interest, in cash or other payment satisfactory to the holders of any such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debtproceedings), after giving effect to any concurrent payment or distribution to or for the holders of Senior and Subordinated Debt, before any payment or distribution is made to the Debentureholders holders of the indebtedness evidenced by the Debentures or to the TrusteeTrustee under this Indenture. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee under this Indenture or the holders of the Debentures before all Senior and Subordinated Debt is paid in full or provision is made for such payment in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior and Subordinated Debt or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior and Subordinated Debt may have been issued, as their respective interests may appear, for application to the payment of all Senior and Subordinated Debt remaining unpaid until all such Senior and Subordinated Debt shall have been paid in full in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior and Subordinated Debt. For purposes of this Article 4Article, the words, “"cash, property or securities” " shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of arrangement, reorganization or readjustment, the payment of which is subordinated (at least to the extent provided in this Article 4 with respect to the Debentures Debentures) to the payment of all Senior and Subordinated Debt which may at the time be outstanding outstanding; provided that (i) the Senior and Subordinated Debt is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights of the holders of the Senior and Subordinated Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person corporation upon the terms and conditions provided for in Article 12 10 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder in respect of the principal of, premium, if any, or interest on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, submitted for purchase in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 15, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Debt10. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06Article 7, except as provided therein. This Section 4.02 shall be subject to the further provisions of Section 4.0514.05.
Appears in 1 contract
Samples: Junior Subordinated Indenture (Owens & Minor Trust I)
Payments to Debentureholders. No payment shall be made with respect to the principal of, premium, if any, or interest on or any other amounts due (including Liquidated Damages, if any) on the Debentures (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase in accordance with Section 3.02, 3.02 or submitted for purchase redemption in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 153.06, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, if:
(i) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Senior Debt occurs and is continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “Payment Default”); or
(ii) a default, other than a Payment Default, on any Designated Senior Debt occurs and is continuing that then permits holders of, or the trustee or agent on behalf of the holders of, such Designated Senior Debt or a Representative thereof to accelerate its maturitymaturity (or in the case of any lease, a default occurs and is continuing that permits the lessor to either terminate the lease or require the Company to make an irrevocable offer to terminate the lease following an event of default thereunder) and the Trustee receives a notice of the default (a “Payment Blockage Notice”) from a holder of Designated Senior Debt, a Representative of Designated Senior Debt or the Company (a “Non-Payment NonPayment Default”). Notwithstanding the foregoing, only one Payment Blockage Notice with respect to the same event of default or any other events of default existing or continuing (whether such events are known or unknown to the Person giving the Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company may and shall resume payments on and distributions in respect of the Debentures:
(1) in the case of a Payment Pyament Default, upon the date on which any such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the date upon which such Non-Payment Default default is cured or waived or ceases to exist or (b) 180 days after the applicable Payment Blockage Notice is received by the Trustee if the maturity of such Designated Senior Debt has not been acceleratedaccelerated (or in the case of any lease, 180 days after notice is received if the Company has not received notice that the lessor under such lease has exercised its right to terminate the lease or require the Company to make an irrevocable offer to terminate the lease following an event of default thereunder), in each case unless this Article 4 otherwise prohibits the payment or distribution at the time of such payment or distribution. Upon any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Senior Debt shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) before any payment is made on account of the principal of, premium, if any, or interest on or any other amounts due (including Liquidated Damages, if any) on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), and upon any such dissolution or winding up or liquidation or reorganization of the Company or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, except for the provisions of this Article 4, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders, or as otherwise required by law or a court order) or their Representative or Representatives, as their respective interests may appear, to the extent necessary to pay all Senior Debt in full, in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. For purposes of this Article 4, the words, “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 with respect to the Debentures to the payment of all Senior Debt which may at the time be outstanding provided that (i) the Senior Debt is assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 12 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of Default, no payment or distribution shall be made to the Trustee or any Debentureholder holder of Debentures in respect of the principal of, premium, if any, or interest (including Liquidated Damages, if any) on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, 3.02 or submitted for purchase redemption in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion of the Debentures in accordance with Article 153.06, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, until all Senior Debt has been paid in full in cash or other payment satisfactory to the holders of Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Debentures is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify holders of Senior Debt of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.02, shall be received by the Trustee or the Debentureholders holders of the Debentures before all Senior Debt is paid in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Senior Debt or their Representative or Representatives, as their respective interests may appear, as calculated by the Company, for application to the payment of all any Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full in cash or other payment satisfactory to the holders of such Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt), after giving effect to any concurrent payment or distribution, or provision therefor, distribution to or for the holders of such Senior Debt. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05.
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Samples: Indenture (Mentor Graphics Corp)
Payments to Debentureholders. No Parent shall not make any payment shall be made pursuant to its obligations under Section 5.1 of this First Supplemental Indenture with respect to any of the principal of, interest on or any other amounts due on the Debentures Obligations (including, but not limited to, the redemption price with respect to the Debentures to be called for repurchase redemption in accordance with Section 3.02, 3.2 of the Indenture or submitted for purchase redemption in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion 3.5 of the Debentures in accordance with Article 15Indenture, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, ) if:
(ia) a default in the payment of principal, premium, if any, interest, rent or other obligations in respect of Designated Parent Senior Debt Obligations occurs and is continuing (or, in the case of Designated Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Designated Senior Debt) (a “"Parent Payment Default”"), unless and until such Parent Payment Default shall have been cured or waived or shall have ceased to exist; or
(iib) a default, other than a Parent Payment Default, on any Designated Parent Senior Debt Obligations (a "Parent Non-Payment Default") occurs and is continuing that then permits holders of, or the trustee or agent on behalf of the holders of, such Designated Parent Senior Debt or a Representative thereof Obligations to accelerate its maturity, maturity and the Trustee receives a written notice of the default (a “"Parent Payment Blockage Notice”") from a holder of Designated Parent Senior DebtObligations, a Representative of Designated Parent Senior Debt Obligations or the Company (a “Parent. No Parent Non-Payment Default”). Notwithstanding Default that existed or was continuing on the foregoing, only one date of delivery of any Parent Payment Blockage Notice with respect to the same event of default Trustee shall be, or any other events of default existing or continuing (whether such events are known or unknown to be made, the Person giving the basis for a subsequent Parent Payment Blockage Notice) at the time of notice on the same issue of Designated Senior Debt may be given during any period of 360 consecutive days unless the event of default or other events of default have been cured or waived for a period of not less than 90 consecutive days. No new payment blockage period may be commenced by the holders of Designated Senior Debt during any period of 360 consecutive days unless all events of default which triggered the preceding Payment Blockage Notice, and any other event of default existing or continuing at the time of such notice, have been waived or cured. The Company Parent may and shall resume payments on and distributions in respect of the DebenturesDebentures pursuant to its obligations under Section 5.1 of this First Supplemental Indenture, including any past scheduled payments of the principal of, premium, if any, and interest (including Liquidated Damages, if any) on such Debentures to which the holders of the Debentures would have been entitled but for the provisions of this Article VI:
(1) in the case of a Parent Payment Default, upon on the date on upon which any such Parent Payment Default is cured or waived or ceases to exist, or; and
(2) in the case of a Parent Non-Payment Default, the earlier of (ai) the date upon which such Non-Payment Default default is cured or waived or ceases to exist or (bii) 180 179 days after the applicable Parent Payment Blockage Notice is received by the Trustee if the maturity of such Designated Parent Senior Debt Obligations has not been acceleratedaccelerated and no Parent Payment Default with respect to any Parent Senior Obligations has occurred which has not been cured or waived or ceased to exist (in such event clause (1) above shall instead be applicable), in each case unless this Article 4 VI otherwise prohibits the such payment or distribution at the time of such payment or distribution. Upon any payment by the CompanyParent, or distribution of assets of the Company Parent of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up or liquidation or reorganization of the CompanyParent, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, all amounts due or to become due upon all Parent Senior Debt Obligations shall first be paid in full in cash or other payment satisfactory to the holders of such Parent Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Obligations, or provision is made for such payment thereof in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Parent Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) Obligations, before any payment by Parent is made on account of the principal of, premium, if any, or interest on or any other amounts due (including Liquidated Damages, if any) on the Debentures (except payments made pursuant to Article 13 from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding up, liquidation or reorganization), Debentures; and upon any such dissolution or winding up or liquidation or reorganization of the Company Parent or bankruptcy, insolvency, receivership or other similar proceeding, or upon any acceleration of the Principal Amount due on the Debentures because of an Event of Default, any payment by the CompanyParent, or distribution of assets of the Company Parent of any kind or character, whether in cash, property or securities, to which the Debentureholders holders of the Debentures or the Trustee would be entitled, except for the provisions provision of this Article 4VI, shall (except as aforesaid) be paid by the Company Parent or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Debentureholders holders of the Debentures or by the Trustee under this the Indenture if received by them or it, directly to the holders of Parent Senior Debt Obligations (pro rata to such holders on the basis of the respective amounts of Parent Senior Debt Obligations held by such holders, or as otherwise required by law or a court order) or their Representative representative or Representativesrepresentatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Parent Senior Obligations may have been issued, as their respective interests may appear, to the extent necessary to pay all Parent Senior Debt Obligations in full, full in cash or other payment satisfactory to the holders of such Parent Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Obligations, after giving effect to any concurrent payment or distribution to or for the holders of Parent Senior DebtObligations, before any payment or distribution is made to the Debentureholders holders of the Debentures or to the Trustee. For purposes of this Article 4VI, the words, “"cash, property or securities” " shall not be deemed to include shares of stock of the Company Parent as reorganized or readjusted, or securities of the Company Parent or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 4 VI with respect to the Debentures to the payment of all Parent Senior Debt Obligations which may at the time be outstanding outstanding; provided that (i) the Parent Senior Debt is Obligations are assumed by the new corporation, if any, resulting from any reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than leases which are not assumed by the Company or the new corporation, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 12 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 4.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 12. In the event of the acceleration of the Debentures because of an Event of DefaultDefault and a demand for payment is made on Parent pursuant to Section 5.1 of this First Supplemental Indenture, no payment or distribution by Parent pursuant to any of its obligations under Section 5.1 of this First Supplemental Indenture shall be made to the Trustee or any Debentureholder holder of Debentures in respect of the principal of, premium, if any, or interest (including Liquidated Damages, if any) on the Debentures (including, but not limited to, the redemption price with respect to the Debentures called for redemption in accordance with Section 3.02, 3.2 of the Indenture or submitted for purchase redemption in accordance with Section 3.05 or submitted for repurchase in accordance with Section 3.06 or upon conversion 3.5 of the Debentures in accordance with Article 15Indenture, as the case may be, as provided in this Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 4.05, ) until all Parent Senior Debt has Obligations have been paid in full in cash or other payment satisfactory to the holders of Parent Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt) Obligations or such acceleration is rescinded in accordance with the terms of this the Indenture. If payment of the Debentures is accelerated because of an Event of DefaultDefault and a demand for payment is made on Parent pursuant to Article V of this First Supplemental Indenture, the Company or the Trustee Parent shall promptly notify holders of Parent Senior Debt Obligations of the acceleration. In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company Parent of any kind or character, whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing provisions in this Section 4.026.2, shall be received by the Trustee or the Debentureholders holders of the Debentures before all Parent Senior Debt is Obligations are paid in full in cash or other payment satisfactory to the holders of such Parent Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Obligations, or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Parent Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Obligations, such payment or distribution shall be held by the recipient in trust for the benefit of and shall be immediately paid over or delivered to the holders of Parent Senior Debt Obligations or their Representative representative or Representativesrepresentatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Parent Senior Obligations may have been issued, as their respective interests may appear, as calculated by the CompanyParent, for application to the payment of all any Parent Senior Debt Obligations remaining unpaid to the extent necessary to pay all Parent Senior Debt Obligations in full in cash or other payment satisfactory to the holders of such Parent Senior Debt (and satisfactory to the holders of Designated Senior Debt in the case such Senior Debt includes Designated Senior Debt)Obligations, after giving effect to any concurrent payment or distribution, or provision therefor, distribution to or for the holders of such Parent Senior Debt. Nothing in this Section 4.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 8.06. This Section 4.02 shall be subject to the further provisions of Section 4.05Obligations.
Appears in 1 contract
