such direction, and may take any other action it deems proper that is not inconsistent with any such direction received from holders of notes.
A holder may not institute any proceeding, judicial or otherwise, with respect to the Indenture or the notes, or for the appointment of a receiver or trustee, or for any other remedy under the Indenture or the notes, unless:
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(1) | the holder has previously given to the trustee written notice of a continuing Event of Default; |
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(2) | holders of at least 25% in aggregate principal amount of outstanding notes have made written request to the trustee to institute proceedings in respect of the Event of Default in its own name as trustee under the Indenture; |
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(3) | holders have offered to the trustee indemnity reasonably satisfactory to the trustee against any costs, liabilities or expenses to be incurred in compliance with such request; |
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(4) | the trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and |
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(5) | during such 60-day period, the holders of a majority in aggregate principal amount of the outstanding notes have not given the trustee a direction that is inconsistent with such written request. |
Notwithstanding anything to the contrary, the right of a holder of a note to receive payment of principal of or interest on its note on or after the Stated Maturities thereof, or to bring suit for the enforcement of any such payment on or after such dates, may not be impaired or affected without the consent of that holder.
If any Default occurs and is continuing and is known to the trustee, the trustee will send notice of the Default to each holder within 90 days after it occurs, unless the Default has been cured; provided that, except in the case of a default in the payment of the principal of or interest on any note, the trustee may withhold the notice if and so long as the trustee in good faith determines that withholding the notice is in the interest of the holders.
No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders
No director, officer, employee, incorporator, member or stockholder of HRG or any Guarantor, as such, will have any liability for any obligations of HRG or such Guarantor under the notes, any Note Guaranty or the Indenture or for any claim based on, in respect of, or by reason of, such obligations. Each holder of notes by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes. This waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the Commission that such a waiver is against public policy.
Amendments and Waivers
Amendments Without Consent of Holders
HRG and the trustee may amend or supplement the Indenture, the notes (and HRG, the trustee or the Collateral Agent may amend or supplement the Security Documents) without notice to or the consent of any noteholder
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(1) | to cure any ambiguity, defect or inconsistency in the Indenture or the notes; |
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(2) | to comply with “—Consolidation, Merger or Sale of Assets”; |
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(3) | to comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act; |
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(4) | to evidence and provide for the acceptance of an appointment by a successor trustee; |
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(5) | to provide for uncertificated notes in addition to or in place of certificated notes, provided that the uncertificated notes are issued in registered form for purposes of Section 163(f) of the Code or any successor provision; |
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(6) | to provide for any Guarantee of the notes, to secure the notes or to confirm and evidence the release, termination or discharge of any Guarantee of or Lien securing the notes when such release, termination or discharge is permitted by the Indenture; |
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(7) | to provide for or confirm the issuance of additional notes; |
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(8) | to make any other change that does not materially and adversely affect the rights of any holder; |
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(9) | to conform any provision to the “Description of Notes” in the December Offering Circular, as certified by an officers’ certificate; or |
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(10) | to evidence the issuance of any Pari-Passu Obligations and secure such obligations with Liens on the Collateral. |
Amendments With Consent of Holders
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(a) | Except as otherwise provided in “—Default and Remedies—Consequences of a Default” or paragraph (b), HRG and the trustee may amend the Indenture and the notes with the written consent of the holders of a majority in principal amount of the outstanding notes and the holders of a majority in principal amount of the outstanding notes may waive future compliance by HRG with any provision of the Indenture or the notes. In addition, the trustee is authorized to |
