Waiver of defaults by majority of holders: Overview, definition, and example
What is a waiver of defaults by majority of holders?
A waiver of defaults by majority of holders refers to a provision in debt agreements, such as bonds or loans, that allows a majority of the holders of the debt instruments to forgive or waive an event of default under certain conditions. In other words, if the borrower or issuer of the debt violates the terms of the agreement (such as failing to make timely payments or breaching other contractual obligations), the majority of the debt holders can agree to waive the default, allowing the borrower to continue without facing immediate penalties or actions, such as acceleration of debt or foreclosure.
This provision is often included in financial agreements to provide flexibility, allowing borrowers to avoid harsh consequences when they face temporary difficulties, provided that most of the debt holders agree to the waiver.
Why is a waiver of defaults by majority of holders important?
A waiver of defaults by majority of holders is important because it allows for a practical and flexible solution when a borrower encounters difficulties meeting their obligations. Instead of triggering immediate legal or financial penalties for a default, the majority of holders can provide relief and allow the borrower more time or a chance to resolve the issue.
For businesses, this can be a critical lifeline in difficult financial situations, enabling them to avoid a default’s cascading consequences. For debt holders, such a waiver can help maintain the value of their investment, as agreeing to a waiver could allow the borrower to stabilize and continue making payments, rather than triggering a potentially costly and time-consuming default process.
Understanding waiver of defaults by majority of holders through an example
Imagine Company A has issued bonds to raise capital, and one of the conditions of the bond agreement is that the company must meet certain financial covenants (such as maintaining a minimum level of revenue or net income). However, due to an unexpected downturn in the market, Company A temporarily fails to meet one of these financial covenants, creating a default under the terms of the bond agreement.
Instead of triggering immediate penalties or calling the full bond amount due (which could lead to financial distress for Company A), a clause in the bond agreement allows a majority of bondholders (say, holders of at least 51% of the bonds) to agree to waive the default. If a majority of bondholders agree, Company A may be given more time to resolve the issue without facing immediate legal action.
Example of a waiver of defaults by majority of holders clause
Here’s how a waiver of defaults by majority of holders clause might appear in a debt agreement:
“In the event of a Default, the Majority Holders (those holding at least 51% of the total outstanding principal amount of the Bonds) may, by written consent, waive such Default. Such waiver shall be effective only if it is given in writing and signed by the Majority Holders, and the Borrower shall not be deemed to have cured the Default unless and until such waiver has been executed. The Borrower shall not be liable for any penalties or acceleration of the Bonds during the period the waiver is in effect.”
Conclusion
A waiver of defaults by majority of holders provides flexibility for both borrowers and debt holders. For borrowers, it can provide relief in difficult times, preventing immediate penalties or more severe actions when defaults occur. For debt holders, it offers the opportunity to maintain their investment's value by giving the borrower a chance to recover and avoid default-related complications.
For businesses and investors, understanding this provision is crucial when negotiating debt agreements or managing investment portfolios. It ensures that in times of financial distress, a more collaborative and flexible approach can be taken, rather than rushing to trigger penalties that could harm the business and the investment.
This article contains general legal information and does not contain legal advice. Cobrief is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.