REMEDIES OF TRUSTEES AND BONDHOLDERS UPON DEFAULT. Section 12.01. The following events are hereby defined for all purposes of this Indenture (except where the term is otherwise defined for specific purposes) as “Defaults”: (a) Failure to pay the principal of any bond hereby secured when the same shall become due and payable, whether at maturity, as therein expressed, or upon redemption or by declaration or otherwise; (b) Failure to pay interest upon any bond hereby secured for a period of ten (10) days after such interest shall have become due and payable; (c) The expiration of a period of sixty (60) days following the entry of a decree or order by a court having jurisdiction in the premises for relief in respect of the Company under the Federal Bankruptcy Act or any other applicable Federal or State law of a similar nature, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of or for the Company or any substantial part of its property, or ordering the winding up or liquidation of its affairs unless during such period such decree, order or appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official shall be vacated or shall be stayed on appeal or otherwise or shall have otherwise ceased to continue in effect; (d) The commencement by the Company of a voluntary case, or the institution by it of proceedings, to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, arrangement or relief under the Federal Bankruptcy Act or any other applicable Federal or State law of a similar nature, or the consent or acquiescence by it to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; (e) The expiration of a period of thirty (30) days after the mailing by the Trustee to the Company of a written demand (citing this provision), or by the holders of fifteen per centum (15%) in principal amount of the bonds at the time Outstanding hereunder (determined as provided in Section 12.07 hereof) to the Company and to the Trustee of a written demand, that the Company perform a specified covenant or agreement contained herein or in any indenture supplemental hereto or in any bond secured hereby, which specified covenant or agreement the Company shall have failed to perform prior to such mailing, unless the Company during such period shall have performed such specified covenant or agreement or shall have in good faith commenced efforts to perform the same. The Trustee may, and, if requested in writing so to do by the holders of a majority in principal amount of the bonds then Outstanding, shall, make such demand; (f) The existence of any “Default”, as therein defined, in any indenture supplemental hereto; and (g) The existence of any “Default”, as therein defined, under the 1944 Mortgage. Section 12.02. The Trustees shall, within thirty (30) days after the occurrence thereof, give to the bondholders in the manner and to the extent provided in subdivision (c) of Section 16.13 hereof, notice of all defaults known to the Trustees, unless such defaults shall have been cured before the giving of such notice (the term “defaults” for the purposes of this Section being hereby defined to be the events specified in subdivisions (a), (b), (c), (d), (e), (f) and (g) of Section 12.01 hereof, not including any periods of grace provided for in said subdivisions) but in the case of any default as specified in subdivision (e) of Section 12.01 hereof, no such notice shall be given until at least twenty (20) days after the occurrence thereof; provided that, except in the case of default in the payment of the principal of or interest on any of the bonds hereby secured, or in the payment of any installment of any fund required to be applied to the purchase or redemption of any of the bonds hereby secured, the Trustee shall be protected in withholding such notice if and so long as the board of directors, executive committee, or a trust committee of directors and/or Responsible Officers, of the Trustee in good faith determine that the withholding of such notice is in the interests of the bondholders and the Co-Trustee shall be protected in withholding such notice if and so long as the Co-Trustee in good faith determines that the withholding of such notice is in the interests of the bondholders. Section 12.03. Upon the occurrence of a Default, the Trustee may, and upon the written request of the holders of twenty-five per centum (25%) in principal amount of the bonds then Outstanding (determined as provided in Section 12.07 hereof) shall, and the holders of twenty-five per centum (25%) in principal amount of the bonds at the time Outstanding hereunder may, (unless the holders of bonds of any series have annulled a declaration of such Default relating to such series of bonds pursuant to the provisions of the supplemental indenture creating such series of bonds), by notice in writing given to the Company (and to the Trustee if such notice be given by bondholders) unless prior to such declaration all covenants with respect to which Default shall have occurred, shall have been fully performed or made good, and all indebtedness secured hereby (including interest on overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on any overdue interest at the rate specified in Section 12.14 hereof), (other than expenses and charges of the Trustees), except the principal of any bonds not then due by their terms (other than by such declaration) and except interest accrued on such bonds since the last interest payment date, shall be paid, or the amount thereof shall be paid to the Trustee for the benefit of those entitled thereto, declare the principal of all of the bonds hereby secured and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable; subject, however, to the right of the holders of a majority in principal amount of all Outstanding bonds, by written notice to the Company and to the Trustees, thereafter to annul such declaration and destroy its effect at any time before any sale hereunder, if, before any such sale, all covenants with respect to which a Default shall have occurred shall be fully performed or made good, and the reasonable expenses and charges of the Trustees, their agents and attorneys, and all other indebtedness secured hereby (including interest on overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on any overdue interest, at the rate specified in Section 12.14 hereof), except the principal of any bonds not then due by their terms (other than by such declaration) and except interest accrued on such bonds since the last interest payment date, shall be paid, or the amount thereof shall be paid to the Trustee for the benefit of those entitled thereto. Section 12.04. Upon the occurrence of one or more Defaults, the Company, upon demand of the Trustees, or either of them, shall (if at the time such action shall be lawful) forthwith surrender to the Trustee or to both the Trustee and the Co-Trustee, or to the Co-Trustee to the extent that the Trustee is not legally qualified to take possession as it or they may demand, the actual possession of, and (if at the time such action shall be lawful) the Trustee, or the Trustee and the Co-Trustee, or the Co-Trustee to the extent that the Trustee is not legally qualified to act in the premises, as shall be specified in such demand, by such officer or agent as it or they may appoint, may take possession of, all the Mortgaged and Pledged Property (with the books, papers and accounts of the Company) and hold, operate and manage the same, and from time to time make all needful repairs and such extensions, additions and improvements as to the Trustee or the Trustee and the Co-Trustee, or the Co-Trustee to the extent the Trustee is not legally qualified to act in the premises, shall seem wise; and receive the tolls, rents, revenues, issues, earnings, income, products and profits thereof, and out of the same pay all proper costs and expenses of so taking, holding, managing and operating the same, including reasonable compensation to the Trustees, their agents and counsel, and any charges of the Trustees hereunder, and any taxes and assessments and other charges prior to the Lien of this Indenture which the Trustee or trustee in possession may deem it wise to pay, and all expenses of such repairs, extensions, additions and improvements, and apply the remainder of the moneys so received by the Trustee, or the Trustee and the Co-Trustee, or the Co-Trustee to the extent the Trustee is not legally qualified to act in the premises, subject to the provisions of Section 12.12 hereof with respect to extended, transferred or pledged coupons or claims for interest, first to the payment of the installments of interest which are due and unpaid (including, to the extent that payment thereof is enforceable under applicable law, interest on overdue interest at the rate specified in Section 12.14 hereof), in the order of their maturity, and next, if the principal of any of said bonds is due, to the payment of the principal and accrued interest thereon (including interest on overdue principal and, to the extent that payment thereof is enforceable under applicable law, interest on overdue interest, at the rate specified in Section 12.14 hereof) pro rata without any preference or priority whatever, except as aforesaid. Whenever all that is due upon such bonds and installments of interest and under any of the terms of this Indenture shall have been paid and all Defaults made good, the Trustees or trustee in possession shall surrender possession to the Company, its successors or assigns; the same right of entry, however, to exist upon any subsequent Default. Section 12.05. Upon the occurrence of one or more Defaults, the Trustees, by such officer or agent as they may appoint, with or without entry, may, if at the time such action shall be lawful, sell all the Mortgaged and Pledged Property as an entirety, or in such parcels as the holders of a majority in principal amount of the bonds Outstanding hereunder (determined as provided in Section 12.07 hereof) shall in writing request, or in the absence of such request, as the Trustees may determine, at public auction, at some convenient place in the City of New Orleans, Louisiana, or such other place or places as may be required by law, having first given notice of such sale by publication in at least one Daily Newspaper of general circulation in the City of New Orleans, Louisiana (if there be such a Daily Newspaper), once preceding such sale, the first publication to be made not less than twenty (20) days prior to the date of such sale, and by like publication in at least one Daily Newspaper of general circulation in the Borough of Manhattan, The City of New York, New York, and any other notice which may be required by law, and from time to time may (to the extent permitted by law) adjourn such sale in their discretion by announcement at the time and place fixed for such sale without further notice, and upon such sale may make and deliver to the purchaser or purchasers a good and sufficient instrument or instruments of conveyance, assignment or transfer for the same, which sale shall to the extent then permitted by law, be a perpetual bar, both at law and in equity, against the Company and all persons, firms and corporations lawfully claiming or who may claim by, through or under it. Section 12.06. In case of the breach of any of the covenants or conditions of this Indenture, the Trustees shall have the right and power to take appropriate judicial proceedings for the enforcement of their rights and the rights of the bondholders hereunder. In case of a Default the Trustees may either after entry, or without entry, proceed by suit or suits at law or in equity to enforce payment of the bonds then Outstanding hereunder and to foreclose this Indenture and to sell the Mortgaged and Pledged Property under the judgment or decree of a court or courts of competent jurisdiction. No remedy by the terms of this Indenture conferred upon or reserved to the Trustees, or either of them (or to the bondholders), is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any Default shall impair any such right or power or shall be construed to be a waiver of any such Default or acquiescence therein; and every such right and power may be exercised from time to time and as often as may be deemed expedient. No waiver of any Default, whether by the Trustee or by the bondholders, shall extend to or shall affect any subsequent Default or shall impair any rights or remedies consequent thereon. Section 12.07. The holders of not less than a majority in principal amount of the bonds at the time Outstanding hereunder may direct the time, method, and place of conducting any proceeding for any remedy available to the Trustees, or either of them, exercising any trust or power conferred upon the Trustees, or either of them, provided, however, that such direction shall not be otherwise than in accordance with the provisions of law and this Indenture and that, subject to the provisions of Sections 16.01 and 16.02 hereof, the Trustees shall have the right to decline to follow any such direction if the Trustee in good faith shall by Responsible Officers determine that the action or proceeding so directed would involve the Trustees, or either of them, in personal liability or be unjustifiably prejudicial to nonassenting bondholders or that it will not be sufficiently indemnified for any expenditures in any action or proceeding so directed. For the purposes of this Section and of Sections 9.06, 12.01, 12.03, 12.05, 16.02, 16.14, 16.15, 18.02, 18.06, 18.10 and 19.06 hereof, and for the purpose of waiving, in accordance with any of the provisions of Section 18.07 hereof, any past Default of the Company and the consequences thereof, in determining whether the holders of the required percentage of the principal amount of bonds have concurred or participated in any direction or consent, (a) bonds for the purchase of which money in the necessary amount shall have been deposited with or shall then be held by the Trustee with irrevocable direction to apply the same to the purchase thereof shall be deemed Outstanding and (b) bonds owned by the Company or by any affiliate of the Company (unless all bonds at the time Outstanding hereunder are then so owned) shall be disregarded, except that for the purpose of determining whether the Trustees, or either of them, shall be protected in relying on any such direction or consent, only bonds which the Trustees, or either of them, know are so owned, shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this paragraph, if the pledgee shall establish to the satisfaction of the Trustees or the Trustee the pledgee’s right to vote such bonds and that the pledgee is not an affiliate of the Company. In case of a dispute as to such right, any decision by the Trustees, or either of them, taken upon the advice of counsel shall be full protection to the Trustees. Section 12.08. In case of a Default and upon the filing of a ▇▇▇▇ in equity or other commencement of judicial proceedings to enforce the rights of the Trustees and of the bondholders under this Indenture, the Trustees shall be entitled, as a matter of right (to the extent that such right is enforce
Appears in 1 contract
Sources: Mortgage and Deed of Trust (Entergy New Orleans, LLC)
REMEDIES OF TRUSTEES AND BONDHOLDERS UPON DEFAULT. Section 12.01. The following events are hereby defined for all purposes of this Indenture (except where the term is otherwise defined for specific purposes) as “Defaults”:
(a) Failure to pay the principal of any bond hereby secured when the same shall become due and payable, whether at maturity, as therein expressed, or upon redemption or by declaration or otherwise;
(b) Failure to pay interest upon any bond hereby secured for a period of ten (10) days after such interest shall have become due and payable;
(c) The expiration of a period of sixty (60) days following the entry of a decree or order by a court having jurisdiction in the premises for relief in respect of the Company under the Federal Bankruptcy Act or any other applicable Federal or State law of a similar nature, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of or for the Company or any substantial part of its property, or ordering the winding up or liquidation of its affairs unless during such period such decree, order or appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official shall be vacated or shall be stayed on appeal or otherwise or shall have otherwise ceased to continue in effect;
(d) The commencement by the Company of a voluntary case, or the institution by it of proceedings, to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, arrangement or relief under the Federal Bankruptcy Act or any other applicable Federal or State law of a similar nature, or the consent or acquiescence by it to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action;
(e) The expiration of a period of thirty (30) days after the mailing by the Trustee to the Company of a written demand (citing this provision), or by the holders of fifteen per centum (15%) in principal amount of the bonds at the time Outstanding hereunder (determined as provided in Section 12.07 hereof) to the Company and to the Trustee of a written demand, that the Company perform a specified covenant or agreement contained herein or in any indenture supplemental hereto or in any bond secured hereby, which specified covenant or agreement the Company shall have failed to perform prior to such mailing, unless the Company during such period shall have performed such specified covenant or agreement or shall have in good faith commenced efforts to perform the same. The Trustee may, and, if requested in writing so to do by the holders of a majority in principal amount of the bonds then Outstanding, shall, make such demand;
(f) The existence of any “Default”, as therein defined, in any indenture supplemental hereto; and
(g) The existence of any “Default”, as therein defined, under the 1944 Mortgage.
Section 12.02. The Trustees shall, within thirty (30) days after the occurrence thereof, give to the bondholders in the manner and to the extent provided in subdivision (c) of Section 16.13 hereof, notice of all defaults known to the Trustees, unless such defaults shall have been cured before the giving of such notice (the term “defaults” for the purposes of this Section being hereby defined to be the events specified in subdivisions (a), (b), (c), (d), (e), (f) and (g) of Section 12.01 hereof, not including any periods of grace provided for in said subdivisions) but in the case of any default as specified in subdivision (e) of Section 12.01 hereof, no such notice shall be given until at least twenty (20) days after the occurrence thereof; provided that, except in the case of default in the payment of the principal of or interest on any of the bonds hereby secured, or in the payment of any installment of any fund required to be applied to the purchase or redemption of any of the bonds hereby secured, the Trustee shall be protected in withholding such notice if and so long as the board of directors, executive committee, or a trust committee of directors and/or Responsible Officers, of the Trustee in good faith determine that the withholding of such notice is in the interests of the bondholders and the Co-Trustee shall be protected in withholding such notice if and so long as the Co-Trustee in good faith determines that the withholding of such notice is in the interests of the bondholders.
Section 12.03. Upon the occurrence of a Default, the Trustee may, and upon the written request of the holders of twenty-five per centum (25%) in principal amount of the bonds then Outstanding (determined as provided in Section 12.07 hereof) shall, and the holders of twenty-five per centum (25%) in principal amount of the bonds at the time Outstanding hereunder may, (unless the holders of bonds of any series have annulled a declaration of such Default relating to such series of bonds pursuant to the provisions of the supplemental indenture creating such series of bonds), by notice in writing given to the Company (and to the Trustee if such notice be given by bondholders) unless prior to such declaration all covenants with respect to which Default shall have occurred, shall have been fully performed or made good, and all indebtedness secured hereby (including interest on overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on any overdue interest at the rate specified in Section 12.14 hereof), (other than expenses and charges of the Trustees), except the principal of any bonds not then due by their terms (other than by such declaration) and except interest accrued on such bonds since the last interest payment date, shall be paid, or the amount thereof shall be paid to the Trustee for the benefit of those entitled thereto, declare the principal of all of the bonds hereby secured and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable; subject, however, to the right of the holders of a majority in principal amount of all Outstanding bonds, by written notice to the Company and to the Trustees, thereafter to annul such declaration and destroy its effect at any time before any sale hereunder, if, before any such sale, all covenants with respect to which a Default shall have occurred shall be fully performed or made good, and the reasonable expenses and charges of the Trustees, their agents and attorneys, and all other indebtedness secured hereby (including interest on overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on any overdue interest, at the rate specified in Section 12.14 hereof), except the principal of any bonds not then due by their terms (other than by such declaration) and except interest accrued on such bonds since the last interest payment date, shall be paid, or the amount thereof shall be paid to the Trustee for the benefit of those entitled thereto.
Section 12.04. Upon the occurrence of one or more Defaults, the Company, upon demand of the Trustees, or either of them, shall (if at the time such action shall be lawful) forthwith surrender to the Trustee or to both the Trustee and the Co-Trustee, or to the Co-Trustee to the extent that the Trustee is not legally qualified to take possession as it or they may demand, the actual possession of, and (if at the time such action shall be lawful) the Trustee, or the Trustee and the Co-Trustee, or the Co-Trustee to the extent that the Trustee is not legally qualified to act in the premises, as shall be specified in such demand, by such officer or agent as it or they may appoint, may take possession of, all the Mortgaged and Pledged Property (with the books, papers and accounts of the Company) and hold, operate and manage the same, and from time to time make all needful repairs and such extensions, additions and improvements as to the Trustee or the Trustee and the Co-Trustee, or the Co-Trustee to the extent the Trustee is not legally qualified to act in the premises, shall seem wise; and receive the tolls, rents, revenues, issues, earnings, income, products and profits thereof, and out of the same pay all proper costs and expenses of so taking, holding, managing and operating the same, including reasonable compensation to the Trustees, their agents and counsel, and any charges of the Trustees hereunder, and any taxes and assessments and other charges prior to the Lien of this Indenture which the Trustee or trustee in possession may deem it wise to pay, and all expenses of such repairs, extensions, additions and improvements, and apply the remainder of the moneys so received by the Trustee, or the Trustee and the Co-Trustee, or the Co-Trustee to the extent the Trustee is not legally qualified to act in the premises, subject to the provisions of Section 12.12 hereof with respect to extended, transferred or pledged coupons or claims for interest, first to the payment of the installments of interest which are due and unpaid (including, to the extent that payment thereof is enforceable under applicable law, interest on overdue interest at the rate specified in Section 12.14 hereof), in the order of their maturity, and next, if the principal of any of said bonds is due, to the payment of the principal and accrued interest thereon (including interest on overdue principal and, to the extent that payment thereof is enforceable under applicable law, interest on overdue interest, at the rate specified in Section 12.14 hereof) pro rata without any preference or priority whatever, except as aforesaid. Whenever all that is due upon such bonds and installments of interest and under any of the terms of this Indenture shall have been paid and all Defaults made good, the Trustees or trustee in possession shall surrender possession to the Company, its successors or assigns; the same right of entry, however, to exist upon any subsequent Default.
Section 12.05. Upon the occurrence of one or more Defaults, the Trustees, by such officer or agent as they may appoint, with or without entry, may, if at the time such action shall be lawful, sell all the Mortgaged and Pledged Property as an entirety, or in such parcels as the holders of a majority in principal amount of the bonds Outstanding hereunder (determined as provided in Section 12.07 hereof) shall in writing request, or in the absence of such request, as the Trustees may determine, at public auction, at some convenient place in the City of New Orleans, Louisiana, or such other place or places as may be required by law, having first given notice of such sale by publication in at least one Daily Newspaper of general circulation in the City of New Orleans, Louisiana (if there be such a Daily Newspaper), once preceding such sale, the first publication to be made not less than twenty (20) days prior to the date of such sale, and by like publication in at least one Daily Newspaper of general circulation in the Borough of Manhattan, The City of New York, New York, and any other notice which may be required by law, and from time to time may (to the extent permitted by law) adjourn such sale in their discretion by announcement at the time and place fixed for such sale without further notice, and upon such sale may make and deliver to the purchaser or purchasers a good and sufficient instrument or instruments of conveyance, assignment or transfer for the same, which sale shall to the extent then permitted by law, be a perpetual bar, both at law and in equity, against the Company and all persons, firms and corporations lawfully claiming or who may claim by, through or under it.
Section 12.06. In case of the breach of any of the covenants or conditions of this Indenture, the Trustees shall have the right and power to take appropriate judicial proceedings for the enforcement of their rights and the rights of the bondholders hereunder. In case of a Default the Trustees may either after entry, or without entry, proceed by suit or suits at law or in equity to enforce payment of the bonds then Outstanding hereunder and to foreclose this Indenture and to sell the Mortgaged and Pledged Property under the judgment or decree of a court or courts of competent jurisdiction. No remedy by the terms of this Indenture conferred upon or reserved to the Trustees, or either of them (or to the bondholders), is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any Default shall impair any such right or power or shall be construed to be a waiver of any such Default or acquiescence therein; and every such right and power may be exercised from time to time and as often as may be deemed expedient. No waiver of any Default, whether by the Trustee or by the bondholders, shall extend to or shall affect any subsequent Default or shall impair any rights or remedies consequent thereon.
Section 12.07. The holders of not less than a majority in principal amount of the bonds at the time Outstanding hereunder may direct the time, method, and place of conducting any proceeding for any remedy available to the Trustees, or either of them, exercising any trust or power conferred upon the Trustees, or either of them, provided, however, that such direction shall not be otherwise than in accordance with the provisions of law and this Indenture and that, subject to the provisions of Sections 16.01 and 16.02 hereof, the Trustees shall have the right to decline to follow any such direction if the Trustee in good faith shall by Responsible Officers determine that the action or proceeding so directed would involve the Trustees, or either of them, in personal liability or be unjustifiably prejudicial to nonassenting bondholders or that it will not be sufficiently indemnified for any expenditures in any action or proceeding so directed. For the purposes of this Section and of Sections 9.06, 12.01, 12.03, 12.05, 16.02, 16.14, 16.15, 18.02, 18.06, 18.10 and 19.06 hereof, and for the purpose of waiving, in accordance with any of the provisions of Section 18.07 hereof, any past Default of the Company and the consequences thereof, in determining whether the holders of the required percentage of the principal amount of bonds have concurred or participated in any direction or consent, (a) bonds for the purchase of which money in the necessary amount shall have been deposited with or shall then be held by the Trustee with irrevocable direction to apply the same to the purchase thereof shall be deemed Outstanding and (b) bonds owned by the Company or by any affiliate of the Company (unless all bonds at the time Outstanding hereunder are then so owned) shall be disregarded, except that for the purpose of determining whether the Trustees, or either of them, shall be protected in relying on any such direction or consent, only bonds which the Trustees, or either of them, know are so owned, shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this paragraph, if the pledgee shall establish to the satisfaction of the Trustees or the Trustee the pledgee’s right to vote such bonds and that the pledgee is not an affiliate of the Company. In case of a dispute as to such right, any decision by the Trustees, or either of them, taken upon the advice of counsel shall be full protection to the Trustees.
Section 12.08. In case of a Default and upon the filing of a ▇▇▇▇ in equity or other commencement of judicial proceedings to enforce the rights of the Trustees and of the bondholders under this Indenture, the Trustees shall be entitled, as a matter of right (to the extent that such right is enforce
Appears in 1 contract
Sources: Mortgage and Deed of Trust (Entergy New Orleans, LLC)
REMEDIES OF TRUSTEES AND BONDHOLDERS UPON DEFAULT. Section SECTION 12.01. The following events are hereby defined for all purposes of this Indenture (except where the term is otherwise defined for specific purposes) as “Defaults”:"Events of Default" (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(aA) Failure to pay the principal of or the premium, if any, on any bond hereby secured Bond as and when the same shall become due and payable at maturity; or
(B) Failure to pay any installment of interest upon any Bond as and when the same shall have become due and payable and continuance of such default for a Period of 15 days; or
(C) Default in the meeting or satisfaction of any redemption payment with respect to any of the Bonds as and when the same shall become due and payable, whether at maturity, as therein expressed, or upon redemption or by declaration or otherwise;
(b) Failure to pay interest upon any bond hereby secured and continuance of such default for a period of ten (10) days after such interest shall have become due and payable;15 days; or
(cD) The expiration of a period of sixty (60) days following the entry of a decree or order by a court having jurisdiction in the premises for relief adjudging the Company or any Operating Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under the Federal Bankruptcy Act or any other applicable Federal or State law of a similar naturelaw, or appointing a custodian, receiver, liquidator, assignee, trustee, trustee or sequestrator (or other similar official) of the Company, any Operating Subsidiary or for any Subsidiary which is the Company or owner of any substantial part of its the Company's or any Operating Subsidiary's property, or ordering the winding winding-up or liquidation of its affairs unless during affairs, and the continuance of any such decree or order unstayed and in effect for a period such decree, order or appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official shall be vacated or shall be stayed on appeal or otherwise or shall have otherwise ceased to continue in effect;60 consecutive days; or
(dE) The commencement institution by the Company or any Operating Subsidiary of a voluntary case, or the institution by it of proceedings, proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, arrangement reorganization or relief under the Federal Bankruptcy Act or any other applicable Federal or State law of a similar naturelaw, or the consent or acquiescence by it to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, trustee or sequestrator (or other similar official) of the Company Company, any Operating Subsidiary or any Subsidiary which is the owner of any substantial part of its the Company's or any Operating Subsidiary's property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any Operating Subsidiary in furtherance of any such action;; or
(eF) The expiration Default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 12.01 specifically dealt with, and other than a default in the performance of Section 6.07 hereof, the breach of which is specifically dealt with in Section 12.01(G) hereof), and continuance of such default or breach for a period of thirty (30) 30 days after the mailing there has been given, by the Trustee registered or certified mail, to the Company of a written demand (citing this provision)by the Corporate Trustee, or to the Corporate Trustee and the Company by the holders of fifteen per centum (15%) at least 10% in principal amount of the bonds at the time Outstanding hereunder Bonds affected (determined as provided such term is defined in Section 12.07 hereof) to the Company and to the Trustee of 19.02), a written demand, that the Company perform a specified covenant notice specifying such default or agreement contained herein or in any indenture supplemental hereto or in any bond secured hereby, which specified covenant or agreement the Company shall have failed to perform prior to such mailing, unless the Company during such period shall have performed such specified covenant or agreement or shall have in good faith commenced efforts to perform the same. The Trustee may, and, if requested in writing so to do by the holders of a majority in principal amount of the bonds then Outstanding, shall, make such demand;
(f) The existence of any “Default”, as therein defined, in any indenture supplemental hereto; and
(g) The existence of any “Default”, as therein defined, under the 1944 Mortgage.
Section 12.02. The Trustees shall, within thirty (30) days after the occurrence thereof, give to the bondholders in the manner breach and to the extent provided in subdivision (c) of Section 16.13 hereof, notice of all defaults known to the Trustees, unless such defaults shall have been cured before the giving of such notice (the term “defaults” for the purposes of this Section being hereby defined requiring it to be the events specified in subdivisions (a), (b), (c), (d), (e), (f) remedied and (g) of Section 12.01 hereof, not including any periods of grace provided for in said subdivisions) but in the case of any default as specified in subdivision (e) of Section 12.01 hereof, no such notice shall be given until at least twenty (20) days after the occurrence thereof; provided that, except in the case of default in the payment of the principal of or interest on any of the bonds hereby secured, or in the payment of any installment of any fund required to be applied to the purchase or redemption of any of the bonds hereby secured, the Trustee shall be protected in withholding such notice if and so long as the board of directors, executive committee, or a trust committee of directors and/or Responsible Officers, of the Trustee in good faith determine stating that the withholding of such notice is a "Notice of Default" hereunder; or
(G) An event of default as defined in the interests of the bondholders and the Co-Trustee shall any mortgage, indenture or instrument, under which there may be protected in withholding such notice if and so long as the Co-Trustee in good faith determines that the withholding of such notice is in the interests of the bondholders.
Section 12.03. Upon the occurrence of a Default, the Trustee may, and upon the written request of the holders of twenty-five per centum (25%) in principal amount of the bonds then Outstanding (determined as provided in Section 12.07 hereof) shall, and the holders of twenty-five per centum (25%) in principal amount of the bonds at the time Outstanding hereunder may, (unless the holders of bonds of any series have annulled a declaration of such Default relating to such series of bonds pursuant to the provisions of the supplemental indenture creating such series of bonds), by notice in writing given to the Company (and to the Trustee if such notice be given by bondholders) unless prior to such declaration all covenants with respect to which Default shall have occurred, shall have been fully performed or made good, and all indebtedness secured hereby (including interest on overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on any overdue interest at the rate specified in Section 12.14 hereof), (other than expenses and charges of the Trustees), except the principal of any bonds not then due by their terms (other than by such declaration) and except interest accrued on such bonds since the last interest payment date, shall be paidissued, or the amount thereof shall by which there may be paid to the Trustee for the benefit secured or evidenced, any indebtedness of those entitled thereto, declare the principal of all of the bonds hereby secured and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable; subject, however, to the right of the holders of a majority in principal amount of all Outstanding bonds, by written notice to the Company and to the Trustees, thereafter to annul such declaration and destroy its effect at any time before any sale hereunder, if, before any such sale, all covenants with respect to which a Default shall have occurred shall be fully performed or made good, and the reasonable expenses and charges of the Trustees, their agents and attorneys, and all other indebtedness secured hereby (including interest on overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on any overdue interest, at the rate specified in Section 12.14 hereof), except the principal of any bonds not then due by their terms (other than by such declaration) and except interest accrued on such bonds since the last interest payment date, shall be paid, or the amount thereof shall be paid to the Trustee for the benefit of those entitled thereto.
Section 12.04. Upon the occurrence of one or more Defaults, the Company, upon demand of the Trustees, whether such indebtedness now exists or either of themshall hereafter be created, shall (if at the time such action shall be lawful) forthwith surrender to the Trustee or to both the Trustee and the Co-Trustee, or to the Co-Trustee to the extent that the Trustee is not legally qualified to take possession as it or they may demand, the actual possession of, and (if at the time such action shall be lawful) the Trustee, or the Trustee and the Co-Trustee, or the Co-Trustee to the extent that the Trustee is not legally qualified to act in the premises, as shall be specified in such demand, by such officer or agent as it or they may appoint, may take possession of, all the Mortgaged and Pledged Property (with the books, papers and accounts of the Company) and hold, operate and manage the same, and from time to time make all needful repairs and such extensions, additions and improvements as to the Trustee or the Trustee and the Co-Trustee, or the Co-Trustee to the extent the Trustee is not legally qualified to act in the premises, shall seem wise; and receive the tolls, rents, revenues, issues, earnings, income, products and profits thereof, and out of the same pay all proper costs and expenses of so taking, holding, managing and operating the same, including reasonable compensation to the Trustees, their agents and counsel, and any charges of the Trustees hereunder, and any taxes and assessments and other charges prior to the Lien of this Indenture which the Trustee or trustee in possession may deem it wise to pay, and all expenses of such repairs, extensions, additions and improvements, and apply the remainder of the moneys so received by the Trustee, or the Trustee and the Co-Trustee, or the Co-Trustee to the extent the Trustee is not legally qualified to act in the premises, subject to the provisions of Section 12.12 hereof with respect to extended, transferred or pledged coupons or claims for interest, first to the payment of the installments of interest which are due and unpaid (including, to the extent that payment thereof is enforceable under applicable law, interest on overdue interest at the rate specified in Section 12.14 hereof), in the order of their maturity, and next, if the principal of any of said bonds is due, to the payment of the principal and accrued interest thereon (including interest on overdue principal happen and, to the extent that payment thereof is enforceable under applicable law, interest on overdue interest, at the rate specified in Section 12.14 hereof) pro rata without any preference or priority whatever, except as aforesaid. Whenever all that is due upon such bonds and installments of interest and under any of the terms of this Indenture shall have been paid and all Defaults made good, the Trustees or trustee in possession shall surrender possession to the Company, its successors or assigns; the same right of entry, however, to exist upon any subsequent Default.
Section 12.05. Upon the occurrence of one or more Defaults, the Trustees, by such officer or agent as they may appoint, with or without entry, may, if at the time such action shall be lawful, sell all the Mortgaged and Pledged Property as an entirety, or in such parcels as the holders of a majority in principal amount of the bonds Outstanding hereunder (determined as provided in Section 12.07 hereof) shall in writing request, or in the absence of such request, as the Trustees may determine, at public auction, at some convenient place in the City of New Orleans, Louisiana, or such other place or places as may be required by law, having first given notice of such sale by publication in at least one Daily Newspaper of general circulation in the City of New Orleans, Louisiana (if there be such a Daily Newspaper), once preceding such sale, the first publication to be made not less than twenty (20) days prior to the date of such sale, and by like publication in at least one Daily Newspaper of general circulation in the Borough of Manhattan, The City of New York, New York, and any other notice which may be required by law, and from time to time may (to the extent permitted by law) adjourn such sale in their discretion by announcement at the time and place fixed for such sale without further notice, and upon such sale may make and deliver to the purchaser or purchasers a good and sufficient instrument or instruments of conveyance, assignment or transfer for the same, which sale shall to the extent then permitted by law, be a perpetual bar, both at law and in equity, against the Company and all persons, firms and corporations lawfully claiming or who may claim by, through or under it.
Section 12.06. In case of the breach of any of the covenants or conditions of this Indenture, the Trustees shall have the right and power to take appropriate judicial proceedings for the enforcement of their rights and the rights of the bondholders hereunder. In case of a Default the Trustees may either after entry, or without entry, proceed by suit or suits at law or in equity to enforce payment of the bonds then Outstanding hereunder and to foreclose this Indenture and to sell the Mortgaged and Pledged Property under the judgment or decree of a court or courts of competent jurisdiction. No remedy by the terms of this Indenture conferred upon or reserved to the Trustees, or either of them (or to the bondholders), is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any Default shall impair any such right or power or shall be construed to be a waiver of any such Default or acquiescence therein; and every such right and power may be exercised from time to time and as often as may be deemed expedient. No waiver of any Default, whether by the Trustee or by the bondholders, shall extend to or shall affect any subsequent Default or shall impair any rights or remedies consequent thereon.
Section 12.07. The holders of not less than a majority in principal amount of the bonds at the time Outstanding hereunder may direct the time, method, and place of conducting any proceeding for any remedy available to the Trustees, or either of them, exercising any trust or power conferred upon the Trustees, or either of them, provided, however, that such direction shall not be otherwise than in accordance with the provisions of law and this Indenture and that, subject to the provisions of Sections 16.01 and 16.02 hereof, the Trustees shall have the right to decline to follow any such direction if the Trustee in good faith shall by Responsible Officers determine that the action or proceeding so directed would involve the Trustees, or either of them, in personal liability or be unjustifiably prejudicial to nonassenting bondholders or that it will not be sufficiently indemnified for any expenditures in any action or proceeding so directed. For the purposes of this Section and of Sections 9.06, 12.01, 12.03, 12.05, 16.02, 16.14, 16.15, 18.02, 18.06, 18.10 and 19.06 hereof, and for the purpose of waiving, in accordance with any of the provisions of Section 18.07 hereof, any past Default of the Company and the consequences thereof, in determining whether the holders of the required percentage of the principal amount of bonds have concurred or participated in any direction or consent, (a) bonds for the purchase of which money in the necessary amount shall have been deposited with or shall then be held by the Trustee with irrevocable direction to apply the same to the purchase thereof shall be deemed Outstanding and (b) bonds owned by the Company or by any affiliate of the Company (unless all bonds at the time Outstanding hereunder are then so owned) shall be disregarded, except that for the purpose of determining whether the Trustees, or either of them, shall be protected in relying on any such direction or consent, only bonds which the Trustees, or either of them, know are so owned, shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this paragraph, if the pledgee shall establish to the satisfaction of the Trustees or the Trustee the pledgee’s right to vote such bonds and that the pledgee is not an affiliate of the Company. In case of a dispute as to such right, any decision by the Trustees, or either of them, taken upon the advice of counsel shall be full protection to the Trustees.
Section 12.08. In case of a Default and upon the filing of a ▇▇▇▇ in equity or other commencement of judicial proceedings to enforce the rights of the Trustees and of the bondholders under this Indenture, the Trustees shall be entitled, as a matter of right (to the extent that such right is enforce
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Sources: Indenture of Mortgage and Deed of Trust (National Healthcare Corp)