Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding: (1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the Guarantor; (2) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment; (3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the Lease; (4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant; (5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and (6) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Trustee under the Operative Documents or (B) the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Lease. (a) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 4 contracts
Samples: Secured Certificates Agreement (Northwest Airlines Corp), Trust Indenture and Security Agreement (Northwest Airlines Corp), Trust Indenture and Security Agreement (Northwest Airlines Corp)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the Guarantor;
(2) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and
(6) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Trustee under the Operative Documents or (B) the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 3 contracts
Samples: Trust Indenture and Security Agreement (Northwest Airlines Corp), Trust Indenture and Security Agreement (Northwest Airlines Holdings Corp/Pred), Trust Indenture and Security Agreement (Northwest Airlines Holdings Corp/Pred)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease (or the comparable provisions of any assigned Permitted Sublease) provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease (or the Guarantorcomparable provisions of any assigned Permitted Sublease);
(2) (A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment]*, and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee’s consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel or any Permitted Sublessee certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d3.2.1 of the Lease;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "“Lessor" ” under the Lease or any assigned Permitted Sublease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's ’s use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "“Lessor" ” under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the Lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in notice given pursuant to Section 9.1 of the Lease) Lease and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 3 contracts
Samples: Trust Indenture and Mortgage (PLM Equipment Growth Fund Vi), Trust Indenture and Mortgage (PLM Equipment Growth Fund V), Trust Indenture and Mortgage (PLM Equipment Growth & Income Fund Vii)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the GuarantorLessee, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the GuarantorLessee;
(2) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner TrusteeTrustee and the Owner Participant, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the LeaseLease or any other Operative Document, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the this Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement)Document, (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (viii) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to (i) adjust upwards Rent, Stipulated Loss Values EBO Amount and Termination Values as provided in Section 3(d3(c) of the Lease, (ii) to extend the Term, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(f) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 22 of the Lease and (v) to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) so long as no Indenture Trustee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Indenture Trustee, to adjust EBO Amounts and Termination Values as provided in Section 3(c) of the Lease or to adjust downward any installment or amount of Basic Rent, Termination Value or EBO Amount, as such installments and amounts are set forth in Exhibits B-1, C and D, respectively, to the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to the Owner Trustee or the Owner Participant;
(6) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c9(b) of the Lease; and
(67) so long as no Indenture Trustee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) limit any rights separately granted to the Indenture Trustee under the Operative Documents or Documents, (B) limit the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the Lien of this Indenture by depriving the Note Holders or other Indenture Indemnitees of the benefit thereof or (C) confer on the Owner Trustee the right to agree to any amendment or supplement to the Lease except in accordance with Article IX. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and (b) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e7(d) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Note Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof or irrevocably elected to purchase the Equipment Notes pursuant to Section 2.14 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and and, subject to the provisions of this Trust Indenture, exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee agrees to provide to the Certificate Note Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 2 contracts
Samples: Trust Indenture and Security Agreement (Us Airways Inc), Lease Agreement (Us Airways Inc)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx sxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the Guarantor;
(2A) the Indenture Trustee shall not, without the consent of the Owner Trustee, execute or deliver amendments or modifications in respect of any provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and
(6) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Trustee under the Operative Documents or (B) the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Lease.
(a) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.to
Appears in 2 contracts
Samples: Trust Indenture and Security Agreement (Northwest Airlines Corp), Trust Indenture and Security Agreement (Northwest Airlines Inc /Mn)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the GTA or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, (i) demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, Lessee; (ii) exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment Payment; and (iii) seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease and to comply with any other covenant of Lessee in Section 7 and 8 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the GuarantorLessee;
(2) unless an Event of Default and an until the Indenture Trustee Event shall have occurred foreclosed on the Lien of the Trust Indenture and be continuing dispossessed the Owner Trustee of all of its right, title and except as provided interest in clause the Lease (4) belowother than Excluded Payments), the Indenture Trustee shall not, without the consent of the Owner TrusteeTrustee and the Owner Participant, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the LeaseLease or any other Operative Document, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the this Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement)Document, (ii) to exercise inspection rights pursuant to Section 12 of the Lease and (iii) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under this Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to (i) adjust upwards Rent, EBO Amount and Termination Values as provided in Section 3(c) of the Lease, (ii) to extend the Term, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e11(g) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 22 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) so long as no Indenture Trustee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Indenture Trustee, to adjust EBO Amounts and Termination Values as provided in Section 3(c) of the Lease or to adjust downward any installment or amount of Basic Rent, EBO Amount or Termination Value, as such installments and amounts are set forth in Exhibits B-1, C and D, respectively, to the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to the Owner Trustee or the Owner Participant;
(6) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c9(b) of the Lease; and
(67) so long as no Indenture Trustee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and use, operation, modification modification, maintenance or maintenance possession (including subleasing and reregistration) of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) limit any rights separately granted to the Indenture Trustee under the Operative Documents or Documents, (B) limit the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or the GTA or confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the Lien of this Indenture by depriving the Note Holders or other Indenture Indemnitees of the benefit thereof or (C) confer on the Owner Trustee the right to agree to any amendment or supplement to the Lease except in accordance with Article IX. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and (b) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e7(d) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Note Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereofhereof or irrevocably elected to purchase the Equipment Notes pursuant to Section 2.14, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and and, subject to the provisions of this Trust Indenture, exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee agrees to provide to the Certificate Note Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 2 contracts
Samples: Trust Indenture and Security Agreement (Us Airways Inc), Trust Indenture and Security Agreement (Us Airways Inc)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the GuarantorLessee, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the GuarantorLessee;
(2) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner TrusteeTrustee and the Owner Participant, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the LeaseLease or any other Operative Document, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement)Document, (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (viii) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to (i) adjust upwards Rent, Stipulated Loss Values EBO Amount and Termination Values as provided in Section 3(d3(c) of the Lease, (ii) to extend the Term, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(b) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 22 of the Lease and (v) to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) so long as no Indenture Trustee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Indenture Trustee, to adjust EBO Amounts and Termination Values as provided in Section 3(c) of the Lease or to adjust downward any installment or amount of Basic Rent, EBO Amount or Termination Value, as such installments and amounts are set forth in Exhibits B, C and D, respectively, to the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to the Owner Trustee or the Owner Participant;
(6) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c9(b) of the Lease; and
(67) so long as no Indenture Trustee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) limit any rights separately granted to the Indenture Trustee under the Operative Documents or Documents, (B) limit the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the Lien of this Indenture by depriving the Note Holders or other Indenture Indemnitees of the benefit thereof or (C) confer on the Owner Trustee the right to agree to any amendment or supplement to the Lease except in accordance with Article IX. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and (b) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e7(d) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Note Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee agrees to provide to the Certificate Note Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 2 contracts
Samples: Indenture (Us Airways Inc), Indenture (Us Airways Inc)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee or the GuarantorLease;
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d3.2.1 of the Lease;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under or (y) confer upon the Purchase AgreementOwner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Lease.
(a) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.be
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant Trustee's consent shall have the right, together be required with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant respect to any Operative Document (including pursuant to Section 7(b) waivers or consents in respect of any of the Participation Agreement)provisions of Section 5, (ii) to exercise inspection rights pursuant to Section 12 7 or 11 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which or of any other Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of such action shall affect ___________________ Insert bracketed language if the Lease and (v) to give notices provides for the assignment of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of permitted sublease. Insert bracketed language if the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to provides for the Owner Participant;
(5) whether or not assignment of a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of permitted sublease. Insert bracketed language if the Lease in respect provides for the assignment of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and
(6) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Trustee under the Operative Documents or (B) the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Leasepermitted sublease.
(a) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided PROVIDED, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided PROVIDED, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the Guarantor;
(2A) the Indenture Trustee shall not, without the consent of the Owner Trustee, execute or deliver amendments or modifications in respect of any provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided PROVIDED that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and
(6) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Trustee under the Operative Documents or (B) the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Northwest Airlines Corp)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx sue for or otherwise obtain all amounts included in Excluded Payments Xxyments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the Guarantor;
(2A) the Indenture Trustee shall not, without the consent of the Owner Trustee, execute or deliver amendments or modifications in respect of any provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the -45- Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and
(6) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Trustee under the Operative Documents or (B) the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Northwest Airlines Inc /Mn)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any Insert bracketed language if the Lease provides for the assignment of a permitted sublease. remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d3.2.1 of the Lease; Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease.
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the GTA or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, (i) demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, Lessee; (ii) exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment Payment; and (iii) seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease and to comply with any other covenant of Lessee in Section 7 and 8 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the GuarantorLessee;
(2) unless an Event of Default and an until the Indenture Trustee Event shall have occurred foreclosed on the Lien of the Trust Indenture and be continuing dispossessed the Owner Trustee of all of its right, title and except as provided interest in clause the Lease (4) belowother than Excluded Payments), the Indenture Trustee shall not, without the consent of the Owner TrusteeTrustee and the Owner Participant, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the LeaseLease or any other Operative Document, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the this Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement)Document, (ii) to exercise inspection rights pursuant to Section 12 of the Lease and (iii) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under this Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to (i) adjust upwards Rent, EBO Amount and Termination Values as provided in Section 3(c) of the Lease, (ii) to extend the Term, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e11(g) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 22 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) so long as no Indenture Trustee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Indenture Trustee, to adjust EBO Amounts and Termination Values as provided in Section 3(c) of the Lease or to adjust downward any installment or amount of Basic Rent, EBO Amount or Termination Value, as such installments and amounts are set forth in Exhibits B, C and D, respectively, to the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to the Owner Trustee or the Owner Participant;
(6) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c9(b) of the Lease; and
(67) so long as no Indenture Trustee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and use, operation, modification modification, maintenance or maintenance possession (including subleasing and reregistration) of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) limit any rights separately granted to the Indenture Trustee under the Operative Documents or Documents, (B) limit the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or the GTA or confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the Lien of this Indenture by depriving the Note Holders or other Indenture Indemnitees of the benefit thereof or (C) confer on the Owner Trustee the right to agree to any amendment or supplement to the Lease except in accordance with Article IX. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and (b) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e7(d) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Note Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereofhereof or irrevocably elected to purchase the Equipment Notes pursuant to Section 2.14, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and and, subject to the provisions of this Trust Indenture, exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee agrees to provide to the Certificate Note Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Us Airways Inc)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx sxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2.1 of the Lease or pursuant to a transfer under Section 10.1.1 of the Participation Agreement;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to select counsel with respect the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any opinion relating installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to tax matters the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be delivered solely distributable to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the Guarantor;
(2A) the Indenture Trustee shall not, without the consent of the Owner Trustee, execute or deliver amendments or modifications in respect of any provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and
(6) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Trustee under the Operative Documents or (B) the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Northwest Airlines Inc /Mn)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any ---------------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d3.2.1 of the Lease; ---------------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease.
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or ---------------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx sxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2.1 of the Lease or pursuant to a transfer under Section 10.1.1 of the Participation Agreement;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to select counsel with respect the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any opinion relating installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to tax matters the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be delivered solely distributable to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d3.2.1 of the Lease;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease. ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d3.2.1 of the Lease; ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease.
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14Section 2.19, 4.03, 4.04(a), 4.08, 5.01 Article IV and 5.03 hereofthis Article V, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate HoldersNoteholders, the Indenture Loan Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: shall promptly (i) give such notice notice, direction, consent, waiver or direction approval or exercise such right, remedy or power hereunder as shall be is specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Indenture Event of Default, approve as satisfactory to the Indenture Loan Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate HoldersNoteholders, the Indenture Loan Trustee shall not approve any such matter as satisfactory to the Indenture Loan Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Loan Trustee, demand, collect, xxx sue for or otherwise obtain all amounts included in Excluded Payments Excludex Xayments from Lessee or the GuarantorLessee, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the GuarantorLessee;
(2A) Loan Trustee shall not, without the consent of Owner Trustee, execute or deliver amendments or modifications in respect of any provisions of the Lease, and (B) unless an Indenture Event of Default and an Indenture a Loan Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Loan Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Indenture Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a an Indenture Default or Indenture Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Loan Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) 4.04 of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e11(f) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a an Indenture Default or Indenture Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Loan Trustee to adjust upward Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or so long as no Loan Trustee Event of Default under the Trust Indenture has occurred and is continuing, Owner Trustee shall have the right, to the exclusion of Loan Trustee, to adjust the Special Purchase Price, [the Initial Installment, the Remaining Installments,] as provided in Section 3(c) of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Exhibits B-1, C and D, respectively, to the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03, as the case may be, be distributable to Owner Trustee or Owner Participant;
(6) whether or not an Indenture Default or Indenture Event of Default has occurred and is continuing, Owner Trustee may, without the consent of the Indenture Loan Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and
(67) so long as no Indenture Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Loan Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Loan Trustee under the Operative Documents or (B) the right of the Indenture Loan Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Loan Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 2.19 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Loan Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e6.02(c) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders Noteholders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Loan Trustee will furnish to each Certificate Holder Noteholder (and, during the continuation of an Indenture a Loan Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Loan Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c11(e) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder Noteholder pursuant hereto or to the Lease.
(a) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2.1 of the Lease or pursuant to a transfer under Section 10.1.1 of the Participation Agreement;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to select counsel with respect the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any opinion relating installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to tax matters the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be delivered solely distributable to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the Guarantor;
(2) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and
(6) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's Lessee s use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Trustee under the Operative Documents or (B) the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Lease.
(a) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Northwest Airlines Corp)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided PROVIDED, HOWEVER, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided PROVIDED, HOWEVER, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee or the GuarantorLease;
(2) (A) so long as the Mortgagee has not foreclosed the Lien of the Trust Indenture, the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or so long as no Mortgagee Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right right, to the exclusion of the Indenture Trustee Mortgagee, to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2 of the Lease or to adjust any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Sections 9.1(b), 9.2 and 9.3 of the Lease, and (iv) obtain insurance for its own account in accordance with Section 9(c) 11.2 of the Lease; and
(6) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED, HOWEVER, that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Trust Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(b) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease Lease, under the Participation Agreement or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, sue xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee or the GuarantorLease;
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the this Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the this Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to adjust upwards Basic Rent, Stipulated Loss Values, Termination Values and the EBO Price, and to adjust the EBO Date, as provided in Section 3.2.1 of the Lease;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Indenture Trustee Mortgagee, to adjust Basic Rent, Stipulated Loss Values Values, Termination Values, the EBO Price and Termination Values the EBO Date as provided in Section 3(d) 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Insert Bracketed Language If the Lease Provides for the Assignment of a Permitted Sublease. Insert Bracketed Language If the Lease Provides for the Assignment of a Permitted Sublease. Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2.1 of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner ParticipantLease;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to the Owner Trustee or the Owner Participant; Insert Bracketed Language If the Lease Provides for the Assignment of a Permitted Sublease. Insert Bracketed Language If the Lease Provides for the Assignment of a Permitted Sublease.
(6) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by Insert bracketed language if the Lease provides for the assignment of a permitted sublease. the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided PROVIDED, HOWEVER, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx sxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided PROVIDED, HOWEVER, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee or the GuarantorLease;
(2) (A) so long as the Mortgagee has not foreclosed the Lien of the Trust Indenture, the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or so long as no Mortgagee Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right right, to the exclusion of the Indenture Trustee Mortgagee, to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2 of the Lease or to adjust any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating to tax matters to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be delivered solely distributable to the Owner Trustee or the Owner Participant, and to make corresponding adjustments to the Rent allocations and set forth on Schedule 2A to the Lease;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Sections 9.1(b), 9.2 and 9.3 of the Lease, and (iv) obtain insurance for its own account in accordance with Section 9(c) 11.2 of the Lease; and
(6) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED, HOWEVER, that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Trust Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(b) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease Lease, under the Participation Agreement or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2.1 of the Lease or pursuant to a transfer under Section 10.1.1 of the Participation Agreement;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to select counsel with respect the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any opinion relating installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to tax matters the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be delivered solely distributable to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease]16 shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the GuarantorLessee, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the GuarantorLessee;
(2) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner TrusteeTrustee and the Owner Participant, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the LeaseLease or any other Operative Document, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the this Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement)Document, (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (viii) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to (i) adjust upwards Rent, Stipulated Loss Values EBO Amount and Termination Values as provided in Section 3(d3(c) of the Lease, (ii) to extend the Term, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(f) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 22 of the Lease and (v) to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) so long as no Indenture Trustee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Indenture Trustee, to adjust EBO Amounts and Termination Values as provided in Section 3(c) of the Lease or to adjust downward any installment or amount of Basic Rent, Termination Value or EBO Amount, as such installments and amounts are set forth in Exhibits B-1, C and D, respectively, to the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to the Owner Trustee or the Owner Participant;
(6) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c9(b) of the Lease; and
(67) so long as no Indenture Trustee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) limit any rights separately granted to the Indenture Trustee under the Operative Documents or Documents, (B) limit the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the Lien of this Indenture by depriving the Note Holders or other Indenture Indemnitees of the benefit thereof or (C) confer on the Owner Trustee the right to agree to any amendment or supplement to the Lease except in accordance with Article IX. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and (b) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e7(d) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Note Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereofhereof or irrevocably elected to purchase the Equipment Notes pursuant to Section 2.14, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and and, subject to the provisions of this Trust Indenture, exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee agrees to provide to the Certificate Note Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Us Airways Inc)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections (xx.xx.) 2.14, 4.03, 4.04(a) and (b), 4.08, 5.01 5.01, and 5.03 hereof5.03, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Loan Trustee shall, subject to the terms of this Section (ss.) 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, the Engine Warranty Assignment or any other part of the Trust Indenture Estate Collateral as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Loan Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Loan Trustee shall not approve any such matter as satisfactory to the Indenture Loan Trustee; provided provided, that anything contained in this Trust IndentureMortgage, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Loan Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded 2002 EETC - Mortgage (LL) (11) 40 Mortgage N__TZ Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section (ss.) 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section (ss.) 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the Guarantor;
(2) unless an a Mortgage Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing exists and except as provided in clause (4) below, the Indenture Loan Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld or delayed if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendmentsamendments or modifications in respect of any of the provisions of the Lease[, modificationsany assigned Permitted Sublease or any Permitted Sublease assignment], or enter into, execute or deliver waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative DocumentsAgreements; provided provided, that, whether or not an a Mortgage Event of Default shall have occurred and be continuingexists, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Mortgage Default or Event of Default under the Trust Indenture has occurred and is continuingexists, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture in addition to that of Loan Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document Agreement (including pursuant to Section 7(b(ss.) 9.3 of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section ss. 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e(ss.) 11.2(b) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section (ss.) 4.03 hereof, the rights of Lessor under Section 21 (ss.) 15.3 of the Lease Lease, and (v) to give notices of default under Section 14 (ss.) 15 of the Lease;
(4) whether or not a Mortgage Default or Event of Default under the Trust Indenture has occurred and is continuingexists, the Owner Trustee shall have the right to the exclusion of the Indenture Loan Trustee to adjust Rent, Rent and Stipulated Loss Values and Termination Values other amounts as provided in Section 3(d) (ss.)
3.2.1 of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;; 2002 EETC - Mortgage (LL) (11) 41 Mortgage N__TZ
(5) whether or not a Mortgage Default or Event of Default under the Trust Indenture has occurred and is continuingexists, the Owner Trustee may, without the consent of the Indenture Loan Trustee, (i) solicit and make bids with respect to the Aircraft under Section (ss.) 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section (ss.) 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) of the Lease; and
(6) so long as no Mortgage Event of Default shall have occurred and be continuingexists, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Loan Trustee including, without limitation, including the right to (i) exercise all rights with respect to Lessee's use and operation, modification modification, or maintenance of the Aircraft and any Engine which the Lease specifically confers on LessorLessor (including the right to seek legal or equitable remedies to require Lessee or the Guarantor to perform the covenants and agreements contained in (xx.xx.) 6, 7, 8, 10, and 12 of the Lease), and (ii) consent to and approve any assignment pursuant to Section (ss.) 13 of the Lease; provided provided, that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Loan Trustee under the Operative Documents Agreements or (B) the right of the Indenture Loan Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon Owner Trustee the right to adversely affect the validity or enforceability of the Lien of this Mortgage. Notwithstanding anything to the contrary contained herein, the Indenture Loan Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) to declare the Lease to be in default under Section (ss.) 15 thereof thereof, and (B) subject only to the provisions of Sections (xx.xx.) 4.03, 4.04(a) and (b), and 2.14 hereof, to exercise the remedies set forth in such Section (ss.) 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Leaseexists.
(a) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to -------------------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2.1 of the Lease or pursuant to a transfer under Section 10.1.1 of the Participation Agreement;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to select counsel with respect the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any opinion relating installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to tax matters the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be delivered solely distributable to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. -------------------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee or the GuarantorLease;
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the this Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the this Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to adjust upwards Basic Rent, Stipulated Loss Values, Termination Values and the EBO Price, and to adjust the EBO Date, as provided in Section 3.2.1 of the Lease;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Indenture Trustee Mortgagee, to adjust Basic Rent, Stipulated Loss Values Values, Termination Values, the EBO Price and Termination Values the EBO Date as provided in Section 3(d) 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx sxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions [or any Permitted Sublessee] certificates and Insert bracketed language if the Lease provides for the assignment of counsel and a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d3.2.1 of the Lease;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the other terms of this Security Agreement, upon the written instructions at any time of the Lender, the Security Trustee shall promptly (i) give such notice, direction, consent, waiver or approval, or exercise such right, remedy or power hereunder in respect of all or any part of the Collateral, or (ii) take such other action in accordance with the terms hereof as shall be specified in such instruction. The Security Trustee will execute such continuation statements with respect to Uniform Commercial Code financing statements relating to the security interest created hereunder in the Collateral as may be specified from time to time in written instructions of the Lender, which instructions shall be accompanied by the form of continuation statement to be executed by the Security Trustee, such continuation statement to be filed by the Debtor. The Security Trustee shall not be liable to the Debtor with respect to any action taken or omitted to be taken by it in accordance with the requests or instructions of the Lender, which requests or instructions are in accordance with the terms hereof, except for any actions or omissions constituting the gross negligence or willful misconduct of the Security Trustee.
(b) Subject to the terms of Sections 2.145.1(a) , 4.03, 4.04(a5.1(f), 4.08, 5.01 6.3 and 5.03 hereofthis Section 6.2, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate HoldersLender, the Indenture Security Trustee shall, subject to the terms of this Section 5.02, shall take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, Agreement or any other part of the Trust Indenture Estate Collateral Document as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Security Trustee all matters required by the terms of the Lease to be satisfactory to the Owner TrusteeDebtor, it being understood that without the written instructions of a Majority in Interest of Certificate HoldersLender, the Indenture Security Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided PROVIDED, HOWEVER, that anything contained in this Trust IndentureSecurity Agreement, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee Debtor or the Owner Participant Participant, may, without the consent of the Indenture Security Trustee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided PROVIDED, HOWEVER, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee or the GuarantorLease;
(2) unless an Event so long as the Security Trustee has not foreclosed the Lien of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) belowthis Agreement, the Indenture Security Trustee shall not, without the consent of the Owner TrusteeDebtor, which consent shall not be withheld if no right or interest of the Owner Trustee Debtor or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendmentswaivers, modifications, waivers amendments or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee Debtor pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded PaymentAgreements;
(3) whether or not a Loan Default or Loan Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee Debtor and the Owner Participant shall have the right, together with the Indenture Security Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee Debtor or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 inspect in accordance with the Lease the Airframe and Engines and all Aircraft Documents and any other part of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the LeaseCollateral;
(4) whether or not a Loan Default or Loan Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee Debtor may, without the consent of the Indenture Security Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Lease Event of Default pursuant to Section 15 of the LeaseDefault, and (iii) make an election pursuant to and in accordance with the provisions of Sections 9.1(b), 9.2 and 9.3 of the Lease, and (iv) obtain insurance for its own account in accordance with Section 9(c) 11.2 of the Lease; and
(65) so long as no Loan Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to Debtor jointly with the exclusion of the Indenture Security Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED, HOWEVER, that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Security Trustee under the Operative Documents Agreements or (B) the right of the Indenture Security Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement or (y) confer upon the Debtor the right to adversely affect the validity or enforceability of the lien of this Agreement. However, the Debtor does hereby agree that it will not without the written consent of the Security Trustee either:
(a) receive or collect or agree to the receipt or collection of any payment (other than Excluded Payments) of Rent, including Basic Rent, Stipulated Loss Value, Termination Value or any other payment to be made pursuant to Section 9 or 10 of the Lease prior to the date for the payment thereof provided for by the Lease or assign, transfer or hypothecate (other than to the Security Trustee hereunder) any payment of Rent, including Basic Rent, Stipulated Loss Value, Termination Value or any other payment to be made pursuant to Section 9 or 10 of the Lease, then due or to accrue in the future under the Lease in respect of the Airframe and Engines; or
(b) except as contemplated by the Trust Agreement in connection with the appointment of a successor owner trustee, sell, mortgage, transfer, assign or hypothecate (other than to the Security Trustee hereunder) its interest in the Airframe and Engines or any part thereof or in any amount to be received by it from the use or disposition of the Airframe and Engines, other than amounts distributed to it pursuant to Article III hereof. Notwithstanding anything to the contrary contained hereinherein (including this Section 6.2), the Indenture Security Trustee shall have the right, to the exclusion of the Owner Trustee Debtor and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(aSection 5.1(f) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute Further and for the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating avoidance of doubt, and anything to the security interest created hereunder contrary contained herein (including this Section 6.2) notwithstanding, in no event may the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) Debtor amend or otherwise modify the final sentence of the Participation Agreement definition of Stipulated Loss Value or as may be specified from time to time Termination Value, in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of any such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, includingcase, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) prior written consent of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the LeaseSecurity Trustee.
(ac) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee Debtor shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 5.1(f) hereof, on request of a Majority in Interest of Certificate Holdersthe Lender, the Indenture Security Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holdersthe Lender. The Indenture Security Trustee agrees to provide to the Certificate HoldersLender, the Owner Trustee, Debtor and the Owner Participant and Lessee concurrently with such declaration by the Indenture Security Trustee, notice of such declaration by the Indenture Security Trustee.
Appears in 1 contract
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided PROVIDED, HOWEVER, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided PROVIDED, HOWEVER, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee or the GuarantorLease;
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease, and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative DocumentsAgreements; provided thatPROVIDED, HOWEVER, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(65) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED, HOWEVER, that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof [except that, solely for purposes of making a demand for any Guaranteed Payment, as defined in the Equity Guaranty, the Owner Participant shall have the right to declare the Lease to be in default under Section 15 thereof] and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that [the Owner Participant shall have all rights and remedies available under the Equity Guaranty, and that] each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the ---------------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2.1 of the Lease or pursuant to a transfer under Section 10.1.1 of the Participation Agreement;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to select counsel with respect the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any opinion relating installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to tax matters the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be delivered solely distributable to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the ---------------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee s consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents ___________________ Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2.1 of the Lease or pursuant to a transfer under Section 10.1.1 of the Participation Agreement;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to select counsel with respect the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any opinion relating installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to tax matters the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be delivered solely distributable to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's Lessee s use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of Agreement or (y) confer upon the Owner Trustee and the Owner Participant, right to (A) declare adversely affect the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file validity or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) enforceability of the Participation Agreement or as may be specified from time to time in written instructions lien of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Leasethis Indenture.
(a) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) 3.2.1 of the Lease or pursuant to a transfer under Section 10.1.1 of the Participation Agreement;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to select counsel with respect the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any opinion relating installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to tax matters the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be delivered solely distributable to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; and
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.14, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall not approve any such matter as satisfactory to the Indenture Trustee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents to the contrary notwithstanding:
(1) the Owner Trustee or the Owner Participant may, without the consent of the Indenture Trustee, demand, collect, xxx sxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the GuarantorLessee, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the GuarantorLessee;
(2) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner TrusteeTrustee and the Owner Participant, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the LeaseLease or any other Operative Document, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect of the Lease shall affect the amount or timing of, or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement)Document, (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (viii) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to (i) adjust upwards Rent, Stipulated Loss Values EBO Amount and Termination Values as provided in Section 3(d3(c) of the Lease, (ii) to extend the Term, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(b) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 22 of the Lease and (v) to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) so long as no Indenture Trustee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Indenture Trustee, to adjust EBO Amounts and Termination Values as provided in Section 3(c) of the Lease or to adjust downward any installment or amount of Basic Rent, EBO Amount or Termination Value, as such installments and amounts are set forth in Exhibits B, C and D, respectively, to the Lease, to the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to the Owner Trustee or the Owner Participant;
(6) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c9(b) of the Lease; and
(67) so long as no Indenture Trustee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) limit any rights separately granted to the Indenture Trustee under the Operative Documents or Documents, (B) limit the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the Lien of this Indenture by depriving the Note Holders or other Indenture Indemnitees of the benefit thereof or (C) confer on the Owner Trustee the right to agree to any amendment or supplement to the Lease except in accordance with Article IX. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and (b) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e7(d) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Note Holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee agrees to provide to the Certificate Note Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Us Airways Inc)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant of Lessee or the Guarantor;
(2) unless an Event of Default and an Indenture Trustee Event shall have occurred and be continuing and except as provided in clause (4) below, the Indenture Trustee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; provided that, whether or not an Event of Default shall have occurred and be continuing, no amendment, modification, waiver or consent in respect other term of the Lease shall affect the amount or timing of, [(or the right to enforce payment of, any Excluded Payment;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture Trustee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel and other documents and all information which any thereof is permitted or required to give or furnish to the Owner Trustee or Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease and (v) to give notices of default under Section 14 of the Lease;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d) of the Lease and to select counsel with respect to any opinion relating to tax matters to be delivered solely to the Owner Participant;
(5) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture Trustee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" and "fair market rental value" under Section 19 of the Lease for all purposes except following an Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the comparable provisions of Section 9(c) of the Lease; and
(6) so long as no Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all rights of the "Lessor" under the Lease shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided that the foregoing shall not limit (A) any rights separately granted to the Indenture Trustee under the Operative Documents or (B) the right of the Indenture Trustee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase Agreement. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded Payments) at any time that a Lease Event of Default shall have occurred and be continuing. The Indenture Trustee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filedassigned Permitted Sublease). The Indenture Trustee will furnish to each Certificate Holder (and, during the continuation of an Indenture Trustee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) and 11(c) of the Lease, respectively, to the extent that the same shall not have been furnished to such Certificate Holder pursuant hereto or to the Lease.
(a) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Holders, the Indenture Trustee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Holders. The Indenture Trustee agrees to provide to the Certificate Holders, the Owner Trustee, the Owner Participant and Lessee concurrently with such declaration by the Indenture Trustee, notice of such declaration by the Indenture Trustee.];
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Action upon Instructions; Certain Rights and Limitations. (a) Subject to the terms of Sections 2.142.13, 4.03, 4.04(a) and (b), 4.08, 5.01 and 5.03 hereof, upon the written instructions at any time and from time to time of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall, subject to the terms of this Section 5.02, take such of the following actions as may be specified in such instructions: (i) give such notice or direction or exercise such right, remedy or power hereunder as shall be specified in such instructions; (ii) give such notice or direction or exercise such right, remedy or power under the Lease, the Participation Agreement, the Purchase Agreement, the Purchase Agreement Assignment, or any other part of the Trust Indenture Estate as shall be specified in such instructions; and (iii) after the occurrence and during the continuance of an Event of Default, approve as satisfactory to the Indenture Trustee Mortgagee all matters required by the terms of the Lease to be satisfactory to the Owner Trustee, it being understood that without the written instructions of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall not approve any such matter as satisfactory to the Indenture TrusteeMortgagee; provided provided, that anything contained in this Trust Indenture, the Lease or the other Operative Documents Agreements to the contrary notwithstanding, but subject to the next paragraph hereof:
(1) the Owner Trustee or the Owner Participant Participant, may, without the consent of the Indenture TrusteeMortgagee, demand, collect, xxx for or otherwise obtain all amounts included in Excluded Payments from Lessee or the Guarantor, exercise any election or option or make any decision or determination or to give or receive any notice, consent, waiver or approval in respect of any Excluded Payment and seek legal or equitable remedies to require Lessee or the Guarantor to maintain the insurance coverage referred to in Section 11 of the Lease; provided Lease [(or the comparable provisions of any assigned Permitted Sublease)] provided, that the rights referred to in this clause (1) shall not be deemed to include the exercise of any remedies provided for in Section 15 of the Lease other than the right to proceed by appropriate court action, either at law Law or in equity, to enforce payment by Lessee or the Guarantor of such amounts included in Excluded Payments or performance by Lessee or the Guarantor of such insurance covenant, covenant or to recover damages for the breach thereof or for specific performance of any covenant other term of Lessee the Lease [(or the Guarantorcomparable provisions of any assigned Permitted Sublease)];
(2A) the Mortgagee shall not, without the consent of the Owner Trustee, enter into, execute or deliver amendments or modifications in respect of any of the provisions of the Lease[, any assigned Permitted Sublease or any Permitted Sublease assignment], and (B) unless an Event of Default and an Indenture Trustee a Mortgagee Event shall have occurred and be continuing and except as provided in clause (4) belowcontinuing, the Indenture Trustee Mortgagee shall not, without the consent of the Owner Trustee, which consent shall not be withheld if no right or interest of the Owner Trustee or the Owner Participant shall be diminished or impaired thereby, (i) enter into, execute and or deliver amendments, modifications, waivers or consents in respect of any of the provisions of the Lease, or (ii) approve any accountants, engineers, appraisers or counsel as satisfactory to render services for or issue opinions to the Owner Trustee pursuant to the Operative Documents; Agreements, provided that, that whether or not an any Mortgagee Event of Default shall have has occurred and be is continuing, no amendment, modification, waiver the Owner Trustee's consent shall be required with respect to any waivers or consent consents in respect of any of the provisions of Section 5, 7 or 11 of the Lease, or of any other Section of the Lease to the extent such action ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Insert bracketed language if the Lease provides for the assignment of a permitted sublease. shall affect (y) the amount or timing of, or the right to enforce payment of, of any Excluded PaymentPayment or (z) the amount or timing of any amounts payable by the Lessee under the Lease as originally executed (or as subsequently modified with the consent of the Owner Trustee) which, absent the occurrence and continuance of an Event of Default hereunder, would be distributable to the Owner Trustee under Article III hereof;
(3) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee and the Owner Participant shall have the right, together with the Indenture TrusteeMortgagee, (i) to receive from Lessee all notices, certificates, reports, filings, opinions of counsel [or any Permitted Sublessee] certificates and other documents and all information which any thereof Lessee is permitted or required to give or furnish to the Owner Trustee or the Lessor pursuant to any Operative Document (including pursuant to Section 7(b) of the Participation Agreement), Agreement and (ii) to exercise inspection rights pursuant to Section 12 of the Lease, (iii) to retain all rights inspect in accordance with respect to insurance maintained for its own account which Section 11(e) of the Lease specifically confers on Lessor or the Owner Participant, (iv) to exercise, to the extent necessary to enable it to exercise its rights under Section 4.03 hereof, the rights of Lessor under Section 21 of the Lease Airframe and (v) to give notices of default under Section 14 of the LeaseEngines and all Aircraft Documents;
(4) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee shall have the right to the exclusion of the Indenture Trustee to adjust upwards Rent, Stipulated Loss Values and Termination Values as provided in Section 3(d3.2.1 of the Lease;
(5) so long as no Mortgagee Event has occurred and is continuing, the Owner Trustee shall have the right, to the exclusion of the Mortgagee, to adjust Basic Rent, Stipulated Loss Values and Termination Values as provided in Section 3.2 of the Lease or to adjust downward any installment or amount of Basic Rent, Stipulated Loss Value or Termination Value, as such installments and amounts are set forth in Schedules 2, 3 and 4, respectively, to select counsel with respect the Lease, to any opinion relating the extent of the portion of such installment or amount that would, under Section 3.01, 3.02 or 3.03 hereof, as the case may be, be distributable to tax matters to be delivered solely to the Owner Trustee or the Owner Participant;
(56) whether or not a Default or Event of Default under the Trust Indenture has occurred and is continuing, the Owner Trustee may, without the consent of the Indenture TrusteeMortgagee, (i) solicit and make bids with respect to the Aircraft under Section 9 of the Lease in respect of a termination of the Lease by Lessee pursuant to Section 9 thereof, (ii) determine "fair market sales value" Fair Market Sales Value and "fair market rental value" Fair Market Rental Value under Section 19 17 of the Lease for all purposes except following an a Mortgagee Event of Default pursuant to Section 15 of the Lease, and (iii) make an election pursuant to and in accordance with the provisions of Section 9(c) Sections 9.1(b), 9.2 and 9.3 of the Lease; andand ---------- Insert bracketed language if the Lease provides for the assignment of a permitted sublease.
(67) so long as no Mortgagee Event of Default shall have occurred and be continuing, except as provided in clauses (2) and (3) above, all other rights of the "Lessor" under the Lease [or any assigned Permitted Sublease] shall be exercised by the Owner Trustee to the exclusion of the Indenture Trustee Mortgagee including, without limitation, the right to (i) exercise all rights with respect to Lessee's use and operation, modification or maintenance of the Aircraft and any Engine which the Lease specifically confers on the Lessor, and (ii) consent to and approve any assignment pursuant to Section 13 of the Lease; provided PROVIDED that the foregoing shall not (x) limit (A) any rights separately granted to the Indenture Trustee Mortgagee under the Operative Documents Agreements or (B) the right of the Indenture Trustee Mortgagee to receive any funds to be delivered to the "Lessor" under the Lease (except with respect to Excluded Payments) and under the Purchase AgreementAgreement or (y) confer upon the Owner Trustee the right to adversely affect the validity or enforceability of the lien of this Indenture. Notwithstanding anything to the contrary contained hereinherein (including this Section 5.02), the Indenture Trustee Mortgagee shall have the right, to the exclusion of the Owner Trustee and the Owner Participant, to (A) declare the Lease to be in default under Section 15 thereof and (B) subject only to the provisions of Sections 4.03, 4.04(a) and 2.14 (b) and 2.13 hereof, exercise the remedies set forth in such Section 15 (other than in connection with Excluded PaymentsPayments and provided that each of the Owner Trustee, Owner Participant and Mortgagee shall independently retain the rights set forth in clause (ii) of Section 15.1.5 of the Lease) at any time that a Lease Event of Default shall have occurred and be continuing. Further and for the avoidance of doubt, and anything to the contrary contained herein (including this Section 5.02), in no event may the Owner Trustee amend or otherwise modify the provisions of Section 3.2.1(e) of the Lease or of the final sentence of the definition of Stipulated Loss Value or Termination Value, in any such case, without the prior written consent of the Mortgagee. The Indenture Trustee Mortgagee will execute and the Owner Trustee will file or cause to be filed such continuation statements with respect to financing statements relating to the security interest created hereunder in the Trust Indenture Estate as specified by Lessee pursuant to Section 8(e) of the Participation Agreement or as may be specified from time to time in written instructions of a Majority in Interest of Certificate Note Holders (which instructions may, by their terms, be operative only at a future date and which shall be accompanied by the form of such continuation statement so to be filed). The Indenture Trustee Mortgagee will furnish to each Certificate Note Holder (and, during the continuation of an Indenture Trustee a Mortgagee Event, to the Owner Trustee and Owner Participant), promptly upon receipt thereof, duplicates or copies of all reports, notices, requests, demands, certificates and other instruments furnished to the Indenture Trustee Mortgagee under the Lease or hereunder, including, without limitation, a copy of any Termination Notice (as defined in the Lease) and a copy of each report or notice received pursuant to Sections 9(a) Section 9 and 11(c) Paragraph E of Annex D of the Lease, respectively, respectively to the extent that the same shall not have been furnished to such Certificate Holder holder pursuant hereto or to the Lease.
(ab) If any Lease Event of Default shall have occurred and be continuing and the Owner Trustee shall not have cured fully such Lease Event of Insert bracketed language if the Lease provides for the assignment of a permitted sublease. Default under and in accordance with Section 4.03 hereof, on request of a Majority in Interest of Certificate Note Holders, the Indenture Trustee Mortgagee shall declare the Lease to be in default pursuant to Section 15 thereof and exercise those remedies specified by such Certificate Note Holders. The Indenture Trustee Mortgagee agrees to provide to the Certificate Note Holders, the Owner Trustee, Trustee and the Owner Participant and Lessee concurrently with such declaration by the Indenture TrusteeMortgagee, notice of such declaration by the Indenture TrusteeMortgagee.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
