Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust. (b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby. (c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions: (i) the Refinancing Trustee shall be added as a party to this Agreement; (ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes); (iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any; (iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and (v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates. (d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment: (i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates; (ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates; (iii) the Class B Certificates may be rated by the Rating Agencies; (iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider; (v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and (vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and (vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates. (e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 2 contracts
Samples: Intercreditor Agreement (Delta Air Lines Inc /De/), Intercreditor Agreement (Delta Air Lines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; providedPROVIDED, howeverHOWEVER, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided furtherPROVIDED FURTHER, howeverHOWEVER, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta Provisions”), "CONTINENTAL PROVISIONS") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(c) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by Continental under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by Continental under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of the any Aircraft for which Series B Equipment Notes Class D Certificates are at the time outstandingissued, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Continental and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class A-1 Certificates, the Class A-2 Certificates, the Class B Certificates, the Class C-1 Certificates and the Class C-2 Certificates substantially in the same manner as the Class C-1 Certificates and the Class C-2 Certificates are subordinated hereunder to the Class B Certificates, the Class A-1 Certificates and the Class A-2 Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall include, without limitation:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio," "Stated Interest Rate," "Trust”, “," "Trust Agreement” and “," "Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 2 contracts
Samples: Intercreditor Agreement (Continental Airlines Inc /De/), Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or the Subordination Agent in order (i) to cure any modification cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(c), 3.05(eSection 3.6(d), 3.05(fSection 3.6(e), 3.05(m), 4.01(a)(iiSection 3.6(f) or 4.01(c), this proviso of Section 8.01(a), (other than the last sentence thereof), or the second sentence of Section 8.01(a), 10.6 or this Section 8.01(c), 8.01(d) or 9.06 9.1 (collectively, the “Delta "US Airways Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta US Airways with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaUS Airways. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and Certificateholder, each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as the Final Distribution on the Class G Certificates have not been made or any Policy Provider Obligations remain outstanding (and no Policy Provider Default shall have occurred and be continuing and so long as the Policy Provider has endorsed the Policy (if so required) as provided in Section 3.7(c) hereof), the Subordination Agent shall request directions from the Policy Provider rather than the Class G Trustee with respect to the Series G Equipment Notes held in the Class G Trust and shall vote or consent in accordance with the directions of the Policy Provider, and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentPolicy Provider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by US Airways under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by US Airways under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificatesan Owned Aircraft.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 2 contracts
Samples: Intercreditor Agreement (Us Airways Inc), Intercreditor Agreement (Us Airways Inc)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f) (other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(c3.05(l), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility, or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider or the Policy Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), the second sentence of Section 8.01(c), 8.01(d) 10.6 or 9.06 this proviso (collectively, the “Delta "America West Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta America West with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerica West. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(c) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no 57 61 Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such series of such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as the Final Distribution on the Class G Certificates has not been made or any Policy Provider Obligations remain outstanding and no Policy Provider Default shall have occurred and be continuing, the Subordination Agent shall request directions from the Policy Provider rather than the Class G Trustee with respect to the Series G Equipment Notes held in the Class G Trust, and (ii) if any Indenture Event of Default (which, in the case of any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentPolicy Provider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by America West under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by America West under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment NotesIf, with respect to all of the Aircraft for which Series B Equipment Notes any Aircraft, Class D Certificates are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreementre-issued, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be re-issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Class D Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the initially issued Class corresponding to the series of the refinanced Equipment NotesD Certificates, including, the subordination of the Refinancing such Class D Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations Class G Certificates and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing C Certificates and the amendment provisions relating to priority of this Agreement as provided below distributions hereunder. No such re-issuance of Class D Certificates shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of Trustee, the Liquidity ProvidersProvider, the Policy Provider or the holders of any Class of Certificates. This Agreement shall be amended by written agreement of Delta America West and the Subordination Agent to give effect to the re-issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsas follows:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions definition of “Certificate”, “Class”, “"Class B D Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) " shall be revised, as appropriate, to reflect such re-issuance (and the subordination definitions of the Refinancing Certificates "Final Legal Distribution Date," "LTV Ratio," and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta "Stated Interest Rate" shall be similarly restrictedamended to specify the applicable Final Legal Distribution Date, LTV Ratio and Stated Interest Rate, respectively, for such re-issued Class D Certificates; and
(vii) the scheduled payment dates such other provisions shall be revised as shall be necessary to provide for distributions on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Class D Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the after payment in full of all amounts owed to relevant distributions on the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B G Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation Class C Certificates. If, with respect to the Class A Certificatesany Aircraft, (y) if the Class B Certificates Series D Equipment Notes are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility wouldre-issued, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This this Agreement shall be amended (to the extent this Agreement does not already so provide) by written agreement of Delta America West and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) provide for each holder of a Series D Equipment Note to be bound by the Class B provisions of Section 2.6 hereof so that the Controlling Party shall, among other things, be entitled to direct the Loan Trustee as provided therein (and such Series D Equipment Notes shall make effective provision therefor so as to bind each holder thereof to such provisions of Section 2.6 hereof) and (if applicableii) to revise the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be reviseddefinition of "Controlling Party", as appropriate, to reflect the re-issuance of the Class B Certificates Series D Equipment Notes (and become effective upon the accession hereto prior rights, as against the holders of such Series D Equipment Notes, of the Class B Trustee and (if applicable) the Class B Liquidity Policy 58 62 Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A G Trustee and the Class A C Trustee to be such "Controlling Party"). No such amendment shall materially adversely affect any Trustee, any Liquidity Provider a copy of or the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the Policy Provider. Any re-issuance of the Class B CertificatesSeries D Equipment Notes at any time shall require Ratings Confirmation.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (America West Airlines Inc)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement Agreement, any guaranty of the Parent or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided provided, that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B A Liquidity Facility, if any, Facility or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the initial Class A Liquidity Facility and (B) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, shall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B Certificates; provided, that in each case Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Facility, if anyProviders shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), and any related amendment of any guaranty of the Parent described in Section 9.03 of the Indentures, shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided provided, that a condition to the issuance of any Refinancing Certificates issued in respect of a Class of Certificates with a Liquidity Facility shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, Provider under such Liquidity Facility and the termination of the Class B such Liquidity Facility, if any, Facility upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider (other than the Liquidity Provider of such terminated Liquidity Facility) a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes or one additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to (in the case of the Series B Equipment Notes) the Series A Equipment Notes or (in the case of the Additional Equipment Notes) the Series A Equipment Notes and the Series B Equipment Notes, in each case to the extent provided in the applicable IndentureIndentures, may be issued at any time. , provided that the Additional Equipment Notes may be issued under an Indenture only if the Series B Equipment Notes shall have been issued under such Indenture prior thereto or concurrently therewith. If the Series B Equipment Notes are issued under any Indenture Indenture, such Series B Equipment Notes shall be issued to the Class B Trust that issues the Class B Certificates to the Class B Certificateholders pursuant to a the Class B Trust Agreement Agreement. If any Additional Equipment Notes are issued under any Indenture, such Additional Equipment Notes shall be issued to a new pass through trust (“Additional Trust”) that issues a class of pass through certificates (the “Additional Certificates”) to certificateholders (the “Additional Certificateholders”) pursuant to a pass through trust agreement (an “Additional Trust Agreement”) with a trustee (an “Additional Trustee”). In the case of the issuance of the Additional Certificates, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of the Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B TrusteeCertificates (subject to clause (vi) below). The issuance of the Class B Certificates or the Additional Certificates, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A CertificatesRating Agencies, (y) in the case of the issuance of the Class B Certificates, if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A any Trustee then party hereto in its individual capacity. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any the Class B Certificates, provided that Certificates or Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Trustee or the Additional Trustee, as applicable, and (if applicable) the Class B Liquidity Provider and the provider of any credit support for the Additional Certificates shall be added as a party to this Agreement;
(ii) in the case of the Class B Certificates, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(iiiii) in the event that Class B Certificates are issued prior to case of the Delivery Period Termination DateAdditional Certificates, the definitions of Deposit “Certificate”, “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance “Controlling Party” (and any such other applicable definitiondefinitions) and the related provisions hereof shall be appropriately revised revised, as appropriate, to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Additional Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee (and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(esubordination thereof)) shall be of no effect and shall be disregarded.;
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Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a)hereof, with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f)or the second sentence of Section 10.6 (collectively, 3.05(m), 4.01(a)(ii) or 4.01(c), together with this proviso of and Section 8.01(a9.1(c), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d"Atlas Provisions") or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Atlas with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement Financing Agreement, Leased or Owned Aircraft Indenture or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAtlas. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each the Liquidity ProviderProvider with respect to the applicable Class of Certificates, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any the related Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(c), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default (which, in the case of any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by Atlas under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by Atlas under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of the any Owned Aircraft for which Series B Equipment Notes are at the time outstandingAtlas issues Class D Certificates, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Atlas and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class B Certificates, the Class A-1 Certificates and the Class A-2 Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall include, without limitation:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio," "Stated Interest Rate," "Trust”, “," "Trust Agreement” " and “"Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.06(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or Section 8.01(d)) and Exhibit A hereto; provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c3.06(c), 3.05(e3.06(e), 3.05(f3.06(f)(other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(c3.06(l), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta "American Provisions”"), (y) would otherwise affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that Subject to Section 2.06, if the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections Section 4.01 and 4.04. Notwithstanding the foregoing; provided that no such amendment, modification, consent or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by American under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyNote.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the applicable Liquidity FacilitiesFacility. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Amr Corp)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of JetBlue and the Subordination Agent (which will execute such agreement as directed by JetBlue, to the extent such amendment is in accordance with this Section 8.01(a)) without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected), (iii) in order to give effect to substitution of any Aircraft pursuant to Section 7.04(f) of the related Indenture and other matters incidental thereto or (iv) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), ) or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta JetBlue Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta JetBlue with respect to DeltaJetBlue’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaJetBlue’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaJetBlue. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple instruments for such Replacement Liquidity Facilities Facility for a single TrustTrust (including without limitation clauses (i) and (ii) of Section 2.04(a) and clauses “first” through “fifth” of Section 3.02, in each case, with respect to the Replacement Liquidity Provider of such Replacement Liquidity Facility).
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby4.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement Agreement, any guaranty of the Parent or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided provided, that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the initial Liquidity Facilities and (B) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, shall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B Certificates; provided, that in each case Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Facility, if anyProviders shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the such Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), and any related amendment of any guaranty of the Parent described in Section 9.03 of the Indentures, shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided provided, that a condition to the issuance of any Refinancing Certificates issued in respect of a Class of Certificates with a Liquidity Facility shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, Provider under such Liquidity Facility and the termination of the Class B such Liquidity Facility, if any, Facility upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider (other than the Liquidity Provider of such terminated Liquidity Facility) a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered to the Subordination Agent in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series A Equipment Notes and the Series B Equipment Notes, in each case to the extent provided in the applicable such Indenture, may be issued at any time. Series B If any Additional Equipment Notes are issued under any Indenture Indenture, such Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of the Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of A Certificates and the Class B Certificates (subject to clause (iv) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, Rating Agencies and (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Amr Corp)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.06(e)(v)(y) with respect to any Replacement Primary Liquidity Facility, any amendment pursuant to Section 3.06(c)(ii) hereof with respect to any Replacement Above-Cap Liquidity Facility or any amendment contemplated by the last penultimate sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent Agent, the Policy Provider and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or Section 8.01(d)) and Exhibit A hereto; provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c3.06(c), 3.05(e3.06(e), 3.05(f3.06(f) (other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(c3.06(l), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta "American Provisions”"), (y) would otherwise affect the interests of any a potential Replacement Primary Liquidity Provider or replacement Depositary or of Delta American with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last penultimate sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby thereby, the Policy Provider and each Primary Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last penultimate sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policy. Notwithstanding any provision to the contrary contained herein, any modification to (x) Section 2.04(b), 3.02 or 3.03 hereof that would change the priority of payments to the Above-Cap Reserve Account, or (y) any provision herein that would materially adversely affect the rights or materially increase the obligations of the Above-Cap Liquidity Provider under its Above-Cap Liquidity Facility shall also require the consent of the Above-Cap Liquidity Provider. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. Each of the Liquidity Providers and the Policy Provider hereby agrees and confirms (except, with respect to the Above-Cap Liquidity Provider, as provided in the second immediately preceding sentence) that (i) it shall be deemed to consent to the issuance of the New Class C Certificates, New Class D Certificates, Class E Certificates, New Series of Series C Equipment Notes, New Series of Series D Equipment Notes, Series E Equipment Notes and the amendments to this Agreement made in connection therewith in accordance with Section 8.01(c) or Section 8.01(d), as the case may be, and (ii) any such issuance shall not affect any of its respective obligations under its Liquidity Facility or the Policy, as applicable. The parties hereto agree that no amendments shall be made to this Agreement pursuant to Section 8.01(c), 8.01(d) or Exhibit A hereto unless each Rating Agency shall have provided written confirmation that the issuance of the New Class C Certificates, the New Class D Certificates or the Class E Certificates, as the case may be, will not cause the rating then in effect by such Rating Agency for any Class of Certificates (without regard, in the case of the Class G Certificates, to the Policy), to be withdrawn, suspended or downgraded. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.the
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Primary Liquidity Facility, any amendment pursuant to Section 3.6(c)(iv) hereof with respect to any Replacement Above-Cap Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(f)(other than the last sentence thereof), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c), 8.01(d9.1(c) or 9.06 this proviso (collectively, the “Delta "Northwest Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Primary Liquidity Provider or replacement Depositary or of Delta Northwest with respect to Delta’s its ability to replace any Primary Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaNorthwest. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Primary Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(c) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the any Replacement Primary Liquidity Facility for any Primary Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Primary Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Primary Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Northwest Airlines Inc /Mn)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or the Subordination Agent in order (i) to cure any cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), 3.6(f)(other than the last sentence thereof), or the second sentence of Section 8.01(a), 10.6 or this Section 8.01(c), 8.01(d) or 9.06 9.1 (collectively, the “Delta "US Airways Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta US Airways with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaUS Airways. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by US Airways under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by US Airways under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificatesan Owned Aircraft.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; providedPROVIDED, howeverHOWEVER, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided furtherPROVIDED FURTHER, howeverHOWEVER, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta Provisions”), "CONTINENTAL PROVISIONS") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(c) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by Continental under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by Continental under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of the any Aircraft for which Series B Equipment Notes Class D Certificates are at the time outstandingissued, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Continental and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class B Certificates, the Class A-1 Certificates and the Class A-2 Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall include, without limitation:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio," "Stated Interest Rate," "Trust”, “," "Trust Agreement” and “," "Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a)hereof, with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d)9.1 hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), 3.6(f)(other than the last sentence thereof), or the second sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 10.6 (collectively, together with this proviso and Section 9.1, the “Delta "US Airways Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta US Airways with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement Financing Agreement, Leased or Owned Aircraft Indenture or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaUS Airways. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(c), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by US Airways under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by US Airways under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificatesan Owned Aircraft.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics provisions for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby4.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of JetBlue and the Subordination Agent (which will execute such agreement as directed by JetBlue, to the extent such amendment is in accordance with this Section 8.01(a)) without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected), (iii) in order to give effect to substitution of any Aircraft pursuant to Section 7.04(f) of the related Indenture and other matters incidental thereto or (iv) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), ) or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta JetBlue Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta JetBlue with respect to DeltaJetBlue’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaJetBlue’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaJetBlue. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple instruments for such Replacement Liquidity Facilities Facility for a single TrustTrust (including without limitation clauses (i) and (ii) of Section 2.04(a) and clauses “first” through “fifth” of Section 3.02, in each case, with respect to the Replacement Liquidity Provider of such Replacement Liquidity Facility).
(ba) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby4.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics provisions for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If (x) Series A Equipment Notes or Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures or (y) at any time following the payment in full of the Series A Equipment Notes or Series B Equipment Notes (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures, in each case, in accordance with the terms of Section 2.11(b) 2.02 of each such Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, including the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations Obligations, the Class AA Certificates, and, if applicable, the Class A Certificates and the Class A B Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class A Certificates”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class A Certificates, may rank pari passu with similar claims in respect of the initial Class A Liquidity Facility, (B) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the Class B Liquidity FacilityFacility and (C) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, if anyshall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class AA Certificates, the Class A Certificates and the Class B Certificates; provided that, in each case, Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Providers shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series AA Equipment Notes, the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time and from time to time. Series B If any series of Additional Equipment Notes are issued under any Indenture Indenture, each such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of such series of Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of AA Certificates, the Class A Certificates, the Class B Certificates and, if applicable, any other Additional Certificates that rank senior in right of payment to such Additional Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics provisions for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If (x) Series A Equipment Notes or Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be 52 Intercreditor Agreement (2016-1) issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures or (y) at any time following the payment in full of the Series A Equipment Notes or Series B Equipment Notes (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures, in each case, in accordance with the terms of Section 2.11(b) 2.02 of each such Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations Obligations, the Class AA Certificates, and, if applicable, the Class A Certificates and the Class A B Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class A Certificates”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class A Certificates, may rank pari passu with similar claims in respect of the initial Class B A Liquidity Facility, if any;
(ivB) in the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance case of any Refinancing Certificates shall be the payment issued in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination respect of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement rank pari passu with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with similar claims in respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility wouldand (C) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, at any date of determination, exceed shall be subordinated to the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determinationAdministration Expenses, the Pool Balance of Liquidity Obligations, the Class AA Certificates, the Class A Certificates and the Class B Certificates; provided that, in each case, Ratings Confirmation with respect to each Class of Certificates has been reduced then rated by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require Rating Agencies and the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate Providers shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.obtained;
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and and, subject to clause (ii) of the proviso in Section 9.1(c), each Liquidity Provider; providedPROVIDED, howeverHOWEVER, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) or omission 9.1(d) hereof or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(d) or 8.01(d)hereof; provided furtherPROVIDED FURTHER, howeverHOWEVER, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f) (other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) Section 9.1(d), the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta Provisions”), "CONTINENTAL PROVISIONS") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c9.1(c) or pursuant to Section 8.01(d9.1(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(c) or 9.1(d) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by Continental under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by Continental under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of Upon the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates issuance of the Class corresponding to the series of the refinanced Equipment NotesC Certificates, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Continental and the Subordination Agent to provide for the adding as a party hereto the Class C Trustee and, if applicable, the Class C Liquidity Provider and the parties hereto confirm and agree that upon the execution and delivery of any such amendment by Continental and the Subordination Agent, the Class C Trustee and, if applicable, the Class C Liquidity Provider shall each be a party hereto as fully and with the same force and effect as if each such Person had originally executed and delivered a counterpart hereof. Any such amendment shall specify, among other things, the Regular Distribution Dates for the Class C Certificates (which may be quarterly), the Final Legal Distribution Date for the Class C Certificates, the LTV Ratio for the Class C Certificates, the Stated Interest Rate for the Class C Certificates (which may be a floating rate of interest), and amend the provisions of this Agreement to give effect to the issuance of the Refinancing Class C Certificates, including, the subordination of the Class C Certificates subject to the following terms Class A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and conditionsthe Liquidity Obligations (other than, if applicable, such portion of the Liquidity Obligations payable to the Class C Liquidity Provider as to which the Class C Liquidity Provider may agree), and any such amendment shall make such further changes hereto as shall be reasonably necessary or advisable in connection therewith; PROVIDED that (i) Ratings Confirmation for the Class A-1 Certificates, Class A-2 Certificates and Class B Certificates shall have been obtained with respect to such amendment, and (ii) the consent of the Class A-1 Liquidity Provider, Class A-2 Liquidity Provider and Class B Liquidity Provider shall be obtained for such amendment, such consent not to be unreasonably withheld or delayed.
(d) If, with respect to any Aircraft, Class D Certificates are issued, this Agreement shall be amended by written agreement of Continental and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class B Certificates, the Class A-1 Certificates and the Class A-2 Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of any Class D Certificates shall include, without limitation:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account", "Certificate”", “"Class”", “Class B Certificates”"Equipment Notes", “"Final Legal Distribution Date”", “"Liquidity Facilities", "Liquidity Provider", "LTV Ratio", "Stated Interest Rate", "Trust”", “"Trust Agreement” " and “"Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Primary Liquidity Facility, any amendment pursuant to Section 3.6(c)(iv) hereof with respect to any Replacement Above-Cap Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; providedPROVIDED, howeverHOWEVER, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) or omission Section 9.1(d) hereof or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates; PROVIDED FURTHER, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, howeverHOWEVER, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this
Section 8.01(a9.1 (a), Section 8.01(c9.1(c), 8.01(d) Section 9.1(d), the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta Provisions”), "CONTINENTAL PROVISIONS") or (y) would otherwise adversely affect the interests of any a potential Replacement Primary Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Primary Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c9.1(c) or pursuant to Section 8.01(d9.1(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby Certificateholder, each Primary Liquidity Provider and each Liquidity the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a9.1(a), Section 9.1(c) or Section 8.01(c) or Section 8.01(d9.1(d), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policies. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Primary Liquidity Facility for any Primary Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Primary Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Primary Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of any notice or for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as (A) Final Distributions on the Class G-1 Certificates or the Class G-2 Certificates have not been made or any Policy Provider Obligations remain outstanding and (B) no Policy Provider Default shall have occurred and be continuing, the Subordination Agent shall request directions from the Policy Provider rather than the Class G-1 Trustee with respect to the Series G-1 Equipment Notes or the Class G-2 Trustee with respect to the Series G-2 Equipment Notes, and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentPolicy Provider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by Continental under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyNote.
(c) If Series B Equipment NotesIf, with respect to all of the Aircraft for which any Indenture, Series B H Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be re-issued in accordance with the terms of Section 2.11(b) of each such Indenture and Section 4(a)(v4(a)(vi) of the Note Purchase Agreement, such series of new re-issued Series H Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”the "RE-ISSUED CLASS H TRUST") that issues a class of pass through certificates (the “Refinancing Certificates”"RE-ISSUED CLASS H CERTIFICATES") to certificateholders (the “Refinancing Certificateholders”"RE-ISSUED CLASS H CERTIFICATEHOLDERS") pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”the "RE-ISSUED CLASS H TRUST AGREEMENT") with a trustee (a “Refinancing Trustee”the "RE-ISSUED CLASS H TRUSTEE"). A Refinancing The Re-Issued Class H Trust, a Refinancing the Re-Issued Class H Trustee and the Refinancing Re-Issued Class H Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Class H Trust, the Class H Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment NotesH Certificates, including, the subordination of the Refinancing Re-Issued Class H Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations Class G-1 Certificates and the Class A G-2 Certificates, the Policy Provider Obligations (other than any Excess Reimbursement Obligations) and the Liquidity Obligations. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity ProvidersTrustees. This Agreement shall be amended by written agreement of Delta Continental and the Subordination Agent to give effect to the issuance of the Refinancing Re-Issued Class H Certificates subject to the following terms and conditions:
(i) the Refinancing Re-Issued Class H Trustee shall be added as a party to this Agreement;
(ii) the definitions of “"Certificate”", “"Class”", “"Class B H Certificates”", “"Final Legal Distribution Date”", “"LTV Ratio", "Trust”", “"Trust Agreement” " and “"Controlling Party” (and such other applicable definitions) " shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notesthereof);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) or any amendment contemplated by hereof and the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without with the consent of such Trustee (acting without any Trustee consent of the Certificateholders of the related Class) if such supplement, modification or the Subordination Agent in order (i) to cure any amendment cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of CertificatesCertificates (or as otherwise permitted under Section 9.01 of the relevant Trust Agreement); provided, and without the consent of any Liquidity Provider further, however, that if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(iiSection 3.6(f) or 4.01(c), this proviso of Section 8.01(a(other than the last sentence thereof), the last sentence of this Section 8.01(a), Section 8.01(c), 8.01(d9.1(a) or 9.06 the second sentence of Section 10.6 (collectively, together with this proviso, the “Delta "Continental Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Participation Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d)Indenture, then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or the Second Mortgage or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture (or, in the case of the Second Mortgage, any Indenture), the Subordination Agent shall request directions with respect to each series of such Equipment Notes instructions from the Trustee of the Trust which holds such Equipment Notes applicable Trustee(s) and shall vote or consent in accordance with the directions of such Trustee Trustee(s) (in the case of each such Trustee, with respect to the Equipment Notes held in such Trust) constituting, in the aggregate, directions with respect to the requisite principal amount of Equipment Notes under such Indenture (or, in the case of the Second Mortgage, with respect to the requisite aggregate principal amount of Equipment Notes under all of the Indentures) and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture (or, in the case of the Second Mortgage, any Indenture), the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by Continental under any Equipment Note issued under such any Indenture in respect of an Aircraft; and provided further that no amendment of or supplement to any Indenture; (ii) change , Participation Agreement or other Operative Agreement or waiver or modification of the date on which any principal amount terms of, Premium47 52 or consent under, if anyany thereof, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, shall without the consent of each CertificateholderLiquidity Provider, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive have any Certificateholder of the benefit of effects listed in the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreementproviso to, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in last sentence of, Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v10.01(a) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing CertificatesIndentures.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of American and the Subordination Agent (which will execute such agreement as directed by American, to the extent such amendment is in accordance with this Section 8.01(a)) without the consent of any Trustee or the Subordination Agent any Liquidity Provider in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected) or (iv) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.If
Appears in 1 contract
Samples: Trust Supplement
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a)hereof, with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or 45 49 the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f), 3.05(fSection 3.6(l), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a9.1(c), the last second sentence of Section 8.01(a), Section 8.01(c), 8.01(d) 10.6 or 9.06 this proviso (collectively, the “Delta "America West Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta America West with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerica West. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(c), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by America West under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by America West under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of the any Aircraft for which Series B Equipment Notes are at the time outstandingAmerica West issues Class D Certificates, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta America West and the Subordination Agent to give effect provide for the subordination of such Class D Certificates to the issuance Class A Certificates, the Class B Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class B and Class A Certificates. No such amendment shall materially adversely affect the interests of the Refinancing Certificates subject to holders of the following terms and conditions:Equipment Notes
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio," "Stated Interest Rate," "Trust”, “," "Trust Agreement” and “," "Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (America West Airlines Inc)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta LATAM Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta LATAM with respect to DeltaLATAM’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaLATAM’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaLATAM. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, the related Lease, the related Sublease, if applicable, the Note Purchase Agreement, any Pledge Agreement, the Call Option Agreements, the other Security Documents or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture or other Security Document prior to or pari passu with the Lien thereon under such Indenture or other Security Document except such as are permitted by such Indenturethereunder; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(39.01(b)(vi) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture or other Security Document on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such IndentureIndenture or as otherwise permitted by such Indenture or other Security Document; (iv) reduce reduce, modify or amend the scope of Secured Obligations under and as defined in any Security Document or modify the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 9.01(b) of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby; or (vi) reduce the amount or extend the time of payment of amounts payable pursuant to clauses 9(a) or 5(a) and (b) of any Lease or Rent or other amount payable by LATAM pursuant to any Lease, in each case as set forth in such Lease, or modify, amend or supplement any Lease or consent to any assignment of any Lease, in either case releasing LATAM from its obligations in respect of the payment of amounts payable pursuant to clauses 9(a) or 5(a) and (b) of the Lease or Rent or other amount payable by LATAM pursuant to any Lease, in each case as set forth in such Lease, or altering the absolute and unconditional character of the obligations of LATAM to pay Rent as set forth in any Lease.
(c) If Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v4(b)(iv) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta LATAM and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Latam Airlines Group S.A.)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement Agreement, any guaranty of the Parent or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided provided, that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.or
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.5(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification (i) is in accordance with Section 8.01(c9.1(c) or 8.01(d)Section 9.1(d) hereof or (ii) cures an ambiguity or inconsistency or does not materially adversely affect such Trustee or the holders of the related Class of Certificates or any Liquidity Provider; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 2.4, Section 3.2, Section 3.5(e), 3.05(eSection 3.5(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.5(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) Section 9.1(d), the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta United Provisions”), ) or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta United with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c9.1(c) or pursuant to Section 8.01(d9.1(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaUnited. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a9.1(a), Section 9.1(c) or Section 8.01(c) or Section 8.01(d9.1(d), modify Section 2.042.4 or 3.2 hereof, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.5(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of any notice or for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee Trustee, and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights with respect to such Equipment Notes as directed by the Controlling Party, Party (subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof); provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider affected Certificateholder and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentLiquidity Provider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by United under any Equipment Note under such Indenture; (ii) or change the date on which time of payments or method of calculation of any principal amount of, Premium, if any, or interest on under any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyNote.
(c) If Series B Equipment Notes or Series C Equipment Notes (or any series of Additional Equipment Notes, ) issued with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be re-issued in accordance with the terms of Section 2.11(b2.10(b) of each Indenture and Section 4(a)(v) of the Note Purchase AgreementIndenture, such series of new re-issued Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity ProvidersTrustees. This Agreement shall be amended by written agreement of Delta United and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”” (if applicable), “Class C Certificates” (if applicable), “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby4.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider and the Policy Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(c), 3.05(eSection 3.6(d), 3.05(fSection 3.6(e), 3.05(m), 4.01(a)(iiSection 3.6(f) or 4.01(c), this proviso of Section 8.01(a), (other than the last sentence thereof), or the second sentence of Section 8.01(a), 10.6 or this Section 8.01(c), 8.01(d) or 9.06 9.1 (collectively, the “Delta "US Airways Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta US Airways with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaUS Airways. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and Certificateholder, each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as the Final Distribution on the Class G Certificates have not been made or any Policy Provider Obligations remain outstanding (and no Policy Provider Default shall have occurred and be continuing and so long as the Policy Provider has endorsed the Policy (if so required) as provided in Section 3.7(c) hereof), the Subordination Agent shall request directions from the Policy Provider rather than the Class G Trustee with respect to the Series G Equipment Notes held in the Class G Trust and shall vote or consent in accordance with the directions of the Policy Provider, and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing the Policy Provider, reduce the amount of rent, supplemental rent or stipulated loss values payable by US Airways under any Lease or reduce the amount of principal or interest payable by US Airways under any Equipment Note issued under any Indenture in respect of an Owned Aircraft.
(c) Upon the issuance of the Class C Certificates, this Agreement shall be amended by adding as a Fractional Undivided Interest in party hereto the Equipment Notes under Class C Trustee and, if applicable, the applicable Indenture held Class C Liquidity Provider and the parties hereto confirm and agree that upon the execution and delivery of any such amendment by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, PremiumClass C Trustee and, if anyapplicable, or interest onthe Class C Liquidity Provider, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu shall each be a party hereto as fully and with the Lien thereon under same force and effect as if each such Indenture except Person had originally executed and delivered a counterpart hereof. Any such as are permitted by such Indenture; provided thatamendment shall amend the definitions of "Final Legal Distribution Date", without "LTV Ratio" and "Stated Interest Rate" to specify the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of applicable Final Legal Distribution Date for the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Class C Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of applicable LTV Ratio for the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing C Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to applicable Stated Interest Rate for the Class A Certificates C Certificates, respectively, and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Class C Certificates to the Class G Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom Obligations and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect to certain of the initial Class B Liquidity FacilityPolicy Provider Obligations, if any;
(iv) all to the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote extent and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) manner set forth herein, and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates make such further changes hereto as shall be the payment in full of all amounts owed reasonably necessary to the Class B Liquidity Providergive effect thereto; provided, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent that no such amendment shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacityPolicy Provider. This Agreement shall be amended by written agreement Upon the presentation of Delta and any such amendment to the Subordination Agent, the Subordination Agent agrees to give effect to execute the issuance of any Class B Certificates, provided that the following terms same and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made thereof to this Agreement each other party hereto and all opinions, certificates and other documents delivered in connection with the issuance of the Class B CertificatesUS Airways.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics provisions for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of American and the Subordination Agent (which will execute such agreement as directed by American, to the extent such amendment is in accordance with this Section 8.01(a)) without the consent of any Trustee or the Subordination Agent any Liquidity Provider in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected) or (iv) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If 55 Intercreditor Agreement (2019-1) the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple instruments for such Replacement Liquidity Facilities Facility for a single TrustTrust (including without limitation clauses (i) and (ii) of Section 2.04(a) and clauses “first” through “fifth” of Section 3.02, in each case, with respect to the Replacement Liquidity Provider of such Replacement Liquidity Facility).
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any such Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any such Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If (x) the Series A Equipment Notes or Series B Equipment Notes (or any series of Additional Equipment Notes), with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures or (y) at any time following the payment in full at maturity or otherwise of the Series A Equipment Notes or Series B Equipment Notes (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding and new Equipment Notes of corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures, in each case in accordance with the terms of Section 2.11(b) 2.02 of each such Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes in each case (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to (A) in the case of any Refinancing Certificates issued in respect of Class A Certificates, the Administration Expenses, the Liquidity Obligations and the Class AA Certificates, (B) in the case of any Refinancing Certificates issued in respect of Class B Certificates, the Administration Expenses, the Liquidity Obligations, the Class AA Certificates and the Class A Certificates and (C) in the case of any Refinancing Certificates issued in respect of any class of Additional Certificates, the Administration Expenses, the Liquidity Obligations, the Class AA Certificates, the Class A Certificates, the Class B Certificates and, if applicable, any other class of Additional Certificates that rank senior, in priority of payment of “Expected Distributions” under this Agreement, to such Refinancing Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class A Certificates”, “Class B Certificates”, “Final Legal Distribution Date”, “Rating Agencies”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination subordination, as applicable, of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class A Certificates, may rank pari passu with similar claims in respect of the initial Class A Liquidity Facility, (B) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the Class B Liquidity Facility, if anyand (C) in the case of any Refinancing Certificates issued in respect of any Class of Additional 57 Intercreditor Agreement (2019-1)
(1) in the case of clause (A) the prior written consent of the Class AA Liquidity Provider and the Class B Liquidity Provider shall have been obtained and (2) in the case of clause (B) the prior written consent of the Class AA Liquidity Provider and the Class A Liquidity Provider shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the such Refinancing Certificates from such Affiliate to any other Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms in clauses (i) to (v) of this Section 8.01(c) shall be deemed to not materially adversely affect any of the Trustee’s rights and obligations and shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the applicable Liquidity Provider’s consent right in clause (y) to the proviso to Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider (other than the Liquidity Provider of such terminated Liquidity Facility) a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each applicable Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series AA Equipment Notes, the Series A Equipment Notes, the Series B Equipment Notes to the extent provided in the applicable and, if applicable, one or more series of Additional Equipment Notes under such Indenture, may be issued at any timetime and from time to time with respect to any or all of the Aircraft. Series B If any series of Additional Equipment Notes are issued under any Indenture Indenture, each such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a pass through trust agreement (an “Additional Trust Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of such 58 Intercreditor Agreement (2019-1) Class B Trust Agreement with of Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of AA Certificates, the Class A Certificates, the Class B Certificates and, if applicable, any other Additional Certificates that rank senior, in priority of payment of “Expected Distributions” under this Agreement, to such Additional Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Rating Agencies”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics provisions for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series A Equipment Notes or Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations Obligations, the Class AA Certificates, and, if applicable, the Class A Certificates and the Class A B Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class A Certificates”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class A Certificates, may rank pari passu with similar claims in respect of the initial Class A Liquidity Facility, (B) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the Class B Liquidity FacilityFacility and (C) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, if anyshall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class AA Certificates, the Class A Certificates and the Class B Certificates; provided that, in each case, Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Providers shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series AA Equipment Notes, the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time and from time to time. Series B If any series of Additional Equipment Notes are issued under any Indenture Indenture, each such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of such series of Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of AA Certificates, the Class A Certificates, the Class B Certificates and, if applicable, any other Additional Certificates that rank senior in right of payment to such Additional Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; providedPROVIDED, howeverHOWEVER, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided furtherPROVIDED FURTHER, howeverHOWEVER, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta Provisions”), "CONTINENTAL PROVISIONS") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.06(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c3.06(c), 3.05(e3.06(e), 3.05(f3.06(f)(other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(c3.06(l), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta "American Provisions”"), (y) would otherwise affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that Subject to Section 2.06, if the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections Section 4.01 and 4.04. Notwithstanding the foregoing; provided that no such amendment, modification, consent or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or termination values payable by American under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by American under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificatesan Owned Aircraft.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a)hereof, with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; providedPROVIDED, howeverHOWEVER, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided furtherPROVIDED FURTHER, howeverHOWEVER, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f)or the second sentence of Section 10.6 (collectively, 3.05(m), 4.01(a)(ii) or 4.01(c), together with this proviso of and Section 8.01(a9.1(c), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d"CONTINENTAL PROVISIONS") or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement Financing Agreement, Leased or Owned Aircraft Indenture or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(c), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by Continental under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by Continental under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of the any Owned Aircraft for which Series B Equipment Notes are at the time outstandingContinental issues Class D Certificates, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Continental and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class A Certificates, the Class B Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class B and Class A Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall include, without limitation:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “," "Liquidity Facilities," "Liquidity Provider." "LTV Ratio," "Stated Interest Rate," "Trust”, “," "Trust Agreement” and “," "Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be ------------------------- supplemented, amended or modified without the consent of each the Trustee (acting, acting except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e) hereof with -------------- respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a), 9.1(a) with the consent of holders of Outstanding -------------- Certificates of the related each Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreements), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, -------- ------- amended or modified without the consent of any Trustee and any Liquidity Provider if such supplement, modification or the Subordination Agent amendment is in order (iaccordance with Section 9.1(c) to cure any or cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially -------------- adversely affect such Trustee, the interests of any Trustee Liquidity Providers or the holders of the related Class of Certificates; provided, and without the consent of any Liquidity Provider further, however, that if such -------- ------- ------- supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(iiSection 3.6(f) or 4.01(c), this proviso of Section 8.01(a), the last -------------- -------------- second sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 10.6 (collectively, together with this proviso, the “Delta ------------ "United Provisions”), ") or (y) would otherwise adversely affect the interests of any a ------------------ potential Replacement Liquidity Provider or replacement Depositary or of Delta United with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement Lease or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d)Owned Aircraft Indenture, then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaUnited. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust or Trusts of the same Class evidenced by the Certificates issued by such Trust or Trusts necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a9.1(c) or Section 8.01(c) or Section 8.01(d), modify Section 2.042.4, 3.02 3.2, 3.3 or 3.03 hereof 3.6(f) relating to -------------- ----------- --- --- ------ the distribution of monies received by the Subordination Agent hereunder from the Equipment Trust Owned Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) 9.1 shall require the consent of the Trustee with ----------- respect to a Trustee Class of Certificates at any time following the payment of Final Distributions with respect to the related such Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one -------------- instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that If the Subordination Agent, as the registered holder of any Equipment Trust Owned Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent modification or waiver under or with respect to any such Equipment Notes, any Confirmation, the Indenture pursuant to which such Equipment Notes were issued or if applicable, any Leased Equipment Notes, the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenturecontinuing, the Subordination Agent shall request directions with respect to each series of such Equipment Notes instructions from the Trustee of the Trust which holds such Equipment the relevant Trust Owned Notes and the consent of each Liquidity Provider (which consent shall not be unreasonably withheld or delayed) and shall vote or consent in accordance with the directions vote of each such Trustee and the instructions of the Liquidity Providers and (ii) if any Indenture Event Default (which, in the case of Default an Indenture pertaining to a Leased Aircraft, has not been cured by the Owner Trustee or the Owner Participant thereunder, if applicable, pursuant to Section 4.3 of such Indenture or in the case of an Indenture pertaining to the 747 Leased Aircraft, has not been cured by the Owner Trustee or the Owner Participant thereunder, if applicable, pursuant to Section 8.03(e) of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding Section 4.1; provided, however, ----------- -------- ------- that no amendment of or supplement to any Indenture, Lease, Participation Agreement or other related document or waiver or modification of the foregoingterms of, or consent under, any thereof, shall without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest Provider, have any of the effects listed in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent proviso of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(311.02(a) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment NotesIf, with respect to all of the Aircraft for which Series B Equipment Notes any Aircraft, Class D Certificates are at the time outstandingissued, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta United and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class A-1 Certificates, the Class A-2 Certificates, the Class B Certificates, the Class C-1 Certificates and the Class C-2 Certificates substantially in the same manner as the Class C-1 Certificates and the Class C-2 Certificates are subordinated hereunder to the Class A-1 Certificates, the Class A-2 Certificates and the Class B Certificates. A Ratings Confirmation shall be obtained prior to any such issuance. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall include:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Maturity Date”, “," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio," "Stated Interest Rate," "Trust”, “," "Trust Agreement” ," and “"Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be ------------------------- supplemented, amended or modified without the consent of each the Trustee (acting, acting except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e) hereof with -------------- respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a), 9.1(a) with the consent of holders of Outstanding -------------- Certificates of the related each Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreements), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, -------- ------- amended or modified without the consent of any Trustee and any Liquidity Provider if such supplement, modification or the Subordination Agent in order (i) to cure any amendment cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect such Trustee, the interests of any Trustee Liquidity Providers or the holders of the related Class of Certificates; provided, and without the consent of any Liquidity Provider further, however, that -------- ------- ------- if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(iiSection 3.6(f) -------------- -------------- or 4.01(c), this proviso of Section 8.01(a), the last second sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 10.6 (collectively, together with this ------------ proviso, the “Delta "United Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta United with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d)Indenture, then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaUnited. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust or Trusts of the same Class evidenced by the Certificates issued by such Trust or Trusts necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.042.4, 3.02 3.2, ----------- --- 3.3 or 3.03 hereof 3.6(f) relating to the distribution of monies received by the --- ------ Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) 9.1 shall require the consent of ----------- the Trustee with respect to a Trustee Class of Certificates at any time following the payment of Final Distributions with respect to the related such Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one -------------- instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that If the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent modification or waiver under or with respect to any such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related if applicable, any Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenturecontinuing, the Subordination Agent shall request directions with respect to each series of such Equipment Notes instructions from the Trustee of the Trust which holds such Equipment the relevant Notes and the consent of each Liquidity Provider (which consent shall not be unreasonably withheld or delayed) and shall vote or consent in accordance with the directions vote of each such Trustee and the instructions of the Liquidity Providers and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding Section 4.1; ----------- provided, however, that no amendment of or supplement to any Indenture, -------- ------- Participation Agreement or other related document or waiver or modification of the foregoingterms of, or consent under, any thereof, shall without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect have any of the Trustees effects listed in their individual capacities or any the proviso of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(iSection 11.02(a) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing CertificatesIndenture.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider and the Policy Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(iiSection 3.6(f) or 4.01(c), this proviso of Section 8.01(a), (other than the last sentence thereof), or the second sentence of Section 8.01(a), 10.6 or this Section 8.01(c), 8.01(d) or 9.06 9.1 (collectively, the “Delta "US Airways Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta US Airways with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaUS Airways. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and Certificateholder, each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as the Final Distributions on the Class G Certificates have not been made or any Policy Provider Obligations remain outstanding (and no Policy Provider Default shall have occurred and be continuing and so long as the Policy Provider has endorsed the Policy (if so required) as provided in Section 3.7(c) hereof), the Subordination Agent shall request directions from the Policy Provider rather than the Class G Trustee with respect to the Series G Equipment Notes held in the Class G Trust and shall vote or consent in accordance with the directions of the Policy Provider, and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing the Policy Provider, reduce the amount of rent, supplemental rent or stipulated loss values payable by US Airways under any Lease or reduce the amount of principal or interest payable by US Airways under any Equipment Note issued under any Indenture in respect of an Owned Aircraft.
(c) Upon the issuance of the Class C Certificates, this Agreement shall be amended by adding as a Fractional Undivided Interest in party hereto the Equipment Notes under Class C Trustee and, if applicable, the applicable Indenture held Class C Liquidity Provider and the parties hereto confirm and agree that upon the execution and delivery of any such amendment by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, PremiumClass C Trustee and, if anyapplicable, or interest onthe Class C Liquidity Provider, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu shall each be a party hereto as fully and with the Lien thereon under same force and effect as if each such Indenture except Person had originally executed and delivered a counterpart hereof. Any such as are permitted by such Indenture; provided thatamendment shall amend the definitions of "Final Legal Distribution Date", without "LTV Ratio" and "Stated Interest Rate" to specify the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of applicable Final Legal Distribution Date for the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Class C Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of applicable LTV Ratio for the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing C Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to applicable Stated Interest Rate for the Class A Certificates C Certificates, respectively, and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Class C Certificates to the Class G Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom Obligations and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect to certain of the initial Class B Liquidity FacilityPolicy Provider Obligations, if any;
(iv) all to the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote extent and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) manner set forth herein, and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates make such further changes hereto as shall be the payment in full of all amounts owed reasonably necessary to the Class B Liquidity Providergive effect thereto; provided, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent that no such amendment shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacityPolicy Provider. This Agreement shall be amended by written agreement Upon the presentation of Delta and any such amendment to the Subordination Agent, the Subordination Agent agrees to give effect to execute the issuance of any Class B Certificates, provided that the following terms same and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made thereof to this Agreement each other party hereto and all opinions, certificates and other documents delivered in connection with the issuance of the Class B CertificatesUS Airways.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each the Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding the Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such the Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each the Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any the Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) cures an ambiguity or 8.01(d)inconsistency or does not materially adversely affect the Trustee, the Liquidity Provider or the holders of the Certificates; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f) (other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(n), the last sentence of this Section 8.01(a9.1(a), the second sentence of Section 8.01(c), 8.01(d) 10.6 or 9.06 this proviso (collectively, the “Delta "Continental Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each the Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any the Trust evidenced by the Certificates issued by such the Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a the Trustee at any time following the payment of Final Triggering Event Distributions with respect to the related Class of Certificatesin full. If the any Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument or an instrument other than a revolving credit agreement, in each case, as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities or for a single Trustsuch instrument, as the case may be.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such the Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed (which has not been cured by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Owner Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.applicable
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Primary Liquidity Facility, any amendment pursuant to Section 3.6(c)(ii)(z) hereof with respect to any Replacement Above-Cap Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee or the Subordination Agent in order (i) to cure any Liquidity Providers if such supplement, amendment or modification cures an ambiguity or omission inconsistency or to correct any mistakedoes not materially, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without the consent of Certificates or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 2.4(a), 3.05(eSection 2.4(b), 3.05(fSection 3.2, Section 3.4, Section 3.6(e), 3.05(mSection 3.6(f), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), the second sentence of Section 8.01(c), 8.01(d) 10.6 or 9.06 this proviso (collectively, the “Delta JetBlue Provisions”), ) or (y) would otherwise adversely affect the interests of any a potential Replacement Primary Liquidity Provider or replacement Depositary or of Delta JetBlue with respect to Delta’s its ability to replace any Primary Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaJetBlue. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or therewith, (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4 or 3.2 hereof, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or either Policy or (iii) modify the definition of “Reserve Amount”. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Primary Liquidity Facility for any Primary Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Primary Liquidity Facility”, then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Primary Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such series of such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as the Final Distribution on the Class G-1 Certificates and Class G-2 Certificates has not been made or any Policy Provider Obligations remain outstanding and no Policy Provider Default shall have occurred and be continuing, the Subordination Agent shall request directions from the Policy Provider rather than the Class G-1 Trustee with respect to the Series G-1 Equipment Notes held in the Class G-1 Trust or the Class G-2 Trustee with respect to the Series G-2 Equipment Notes held in the Class G-2 Trust and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof, provided that no such amendment, modification or waiver shall, without the consent of each affected Certificateholder and each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall Policy Provider (iw) reduce the amount of principal amount of, Premium, if any, or interest on, payable by JetBlue under any Equipment Note issued under such any Indenture; , (iix) change modify any of the date on which any principal amount of, Premium, if anyprovisions of Section 10.01, or interest on of Article II or III or Section 5.01, 5.02(c), 5.02(d), 6.01 or 6.02 of any Equipment Note under such Indenture, is due the definitions of “Event of Default,” “Default,” “Majority in Interest of Note Holders,” “Break Amount,” “Prepayment Premium” or payable; “Note Holder,” or the percentage of Note Holders required to take or approve any action under the Indentures, (iiiy) create reduce, modify or amend any indemnities in favor of the Loan Trustee or the Note Holders (except that the Loan Trustee may consent to any waiver or reduction of an indemnity payable to it), or (z) permit the creation of any Lien with respect to on the Collateral subject to such Indenture prior to (as defined in the relevant Indenture) or pari passu with any part thereof other than Permitted Liens (as defined in the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3Indentures) of such Indenture or deprive any Certificateholder Note Holder of the benefit of the Lien of such Indenture on such the Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of Delta and the Subordination Agent (which will execute such agreement as directed by Delta, to the extent such amendment is in accordance with this Section 8.01(a)) without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected), (iii) in order to give effect to substitution of any Aircraft pursuant to Section 7.04(f) of the related Indenture and other matters incidental thereto or (iv) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), ) or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple instruments for such Replacement Liquidity Facilities Facility for a single TrustTrust (including without limitation clauses (i) and (ii) of Section 2.04(a) and clauses “first” through “fifth” of Section 3.02, in each case, with respect to the Replacement Liquidity Provider of such Replacement Liquidity Facility).
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any such Equipment Note under such Indenture (other than any change in the principal amount of any such Equipment Note in connection with any substitution pursuant to Section 7.04(f) of such Indenture); (ii) change the date on which any principal amount of, Premium, if any, or interest on any such Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iviii) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If (x) the Series B A Equipment Notes (or any series of Additional Equipment Notes), with respect to all of the Aircraft for which Series B A Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of a corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures or (y) at any time following the payment in full at maturity or otherwise of the Series A Equipment Notes (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series A Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding and new Equipment Notes of a corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures, in each case in accordance with the terms of Section 2.11(b) 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreementsuch Indenture, such series of new Equipment Notes in each case (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the each, a “Refinancing CertificateholdersCertificateholder”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to (A) in the case of any Refinancing Certificates issued in respect of Class A Certificates, the Administration Expenses, the Liquidity Obligations and the Class AA Certificates and (B) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, the Administration Expenses, the Liquidity Obligations, the Class AA Certificates, the Class A Certificates, and, if applicable, any other class of Additional Certificates that rank senior, in priority of payment of “Expected Distributions” under this Agreement, to such Refinancing Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B A Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination subordination, as applicable, of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of Spirit and the Subordination Agent without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected) or (iii) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), ) or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Spirit Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta Spirit with respect to DeltaSpirit’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaSpirit’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaSpirit. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple instruments for such Replacement Liquidity Facilities Facility for a single TrustTrust (including without limitation clauses (i) and (i) of Section 2.04(a) and clauses “first” through “fifth” of Section 3.02, in each case, with respect to the Replacement Liquidity Provider for such Replacement Liquidity Facility.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any such Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any such Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of Delta and the Subordination Agent without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected) or (iii) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), ) or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple instruments for such Replacement Liquidity Facilities Facility for a single TrustTrust (including without limitation clauses (i) and (ii) of Section 2.04(a) and clauses “first” through “fifth” of Section 3.02, in each case, with respect to the Replacement Liquidity Provider of such Replacement Liquidity Facility).
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.Equipment
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each the Class A Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.5(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding the Class A Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Class A Trust aggregating not less than a majority in interest in such the Class A Trust or as otherwise authorized pursuant to the relevant Class A Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each the Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any the Class A Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification (i) is in accordance with Section 8.01(c9.1(c) hereof or 8.01(d)(ii) cures an ambiguity or inconsistency or does not materially adversely affect the Class A Trustee or the holders of the Class A Certificates or the Liquidity Provider; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 2.4, Section 3.2, Section 3.5(e), 3.05(eSection 3.5(f) (other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.5(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta United Provisions”), ) or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta United with respect to Delta’s its ability to replace any the Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaUnited. Notwithstanding the foregoing, (A) without the consent of each Class A Certificateholder affected thereby and each the Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Class A Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith and (B) without the prior written consent of the Liquidity Provider, no amendment, supplement, modification or waiver of any of the provisions of this Agreement may alter or modify (i) Section 2.4 or Section 3.2 (except as expressly provided in Section 9.1(c) but in no event shall any such alteration or modification adversely affect the Liquidity Provider), (ii) to the extent such Section relates to the rights or obligations of the Liquidity Provider, Section 2.6(c) or (ii)iii) to the extent such Section relates to the rights or obligations of the Liquidity Provider, Section 3.5 (except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities). Nothing contained in this Section 8.01(a) shall require the consent of a the Class A Trustee at any time following the payment of Final Distributions with respect to the related Class of A Certificates. If the Replacement Liquidity Facility for any the Liquidity Facility in accordance with Section 3.5(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of any notice or for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee Trustee, and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights with respect to such Equipment Notes as directed by the Controlling Party, Party (subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof); provided that no such amendment, modification or waiver shall, without the consent of each affected Certificateholder and the Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by United under any Equipment Note under such Indenture; (ii) or change the date on which time of payments or method of calculation of any principal amount of, Premium, if any, or interest on under any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyNote.
(c) If Series B Equipment NotesAfter the Deposit Period Termination Date, with respect at any time and from time to all of the Aircraft for which Series B Equipment Notes are at the time outstandingtime, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such a single additional series of new Equipment Notes (the “Refinancing Additional Equipment Notes”) may be issued under Section 2.02 of one or more of the Indentures subject to the terms and conditions of this Section 9.1(c); provided that (i) the Additional Equipment Notes are subordinated in right of payment to the Series A Equipment Notes under each Indenture and (ii) no more than one series of Additional Equipment Notes may be outstanding at any time. If a series of Additional Equipment Notes is issued under any Indenture, such series of Additional Equipment Notes shall be issued to a new pass through trust (a the “Refinancing Additional Trust”) that issues a class of pass through certificates (the “Refinancing Additional Certificates”) to certificateholders (the “Refinancing Additional Certificateholders”) pursuant to a pass through trust agreement (a the “Refinancing Additional Trust Agreement”) with a trustee (a the “Refinancing Additional Trustee”). On each Distribution Date, no distributions or other cash payments may be made on or in respect of the Additional Certificates unless and until the Expected Distributions with respect to the Class A Refinancing TrustCertificates on such Distribution Date have been made in full; provided that, the Additional Trustee shall be reimbursed on a Refinancing pari passu basis with the Class A Trustee for any amounts of the nature described in clause (i) of clause “first” of Section 3.2 hereof but solely to the extent such amounts (x) constitute ordinary administrative expenses (and for the avoidance of doubt, “ordinary administrative expenses” shall not include any costs or expenses (including any costs of counsel) incurred by the Additional Trustee related to enforcement under any of the Operative Agreements) and (y) have been actually incurred by the Additional Trustee under the Additional Trust Agreement. In the case of the issuance of any Additional Certificates, this Agreement shall be amended by written agreement of United and the Refinancing Certificates shall be subject Subordination Agent to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, provide for the subordination of the Refinancing Additional Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such Any and each such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require a Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity ProvidersClass A Trustee. This Agreement shall be amended by written agreement of Delta United and the Subordination Agent to give effect to the issuance of the Refinancing any Additional Certificates subject to the following terms and conditions:
(i) the Refinancing Additional Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B CertificatesEquipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such the issuance of the Additional Certificates (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notesthereof);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of Spirit and the Subordination Agent without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected) or (iii) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), ) or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Spirit Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta Spirit with respect to DeltaSpirit’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaSpirit’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective effective
Exhibit 4.1 without the additional written consent of DeltaSpirit. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any such Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any such Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
. (c) If (x) the Series B Equipment Notes or Series C Equipment Notes (or any series of Additional Equipment Notes), with respect to all of the Aircraft for which Series B Equipment Notes or Series C Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures or (y) at any time following the payment in full of the Series B Equipment Notes or Series C Equipment Notes (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series B Equipment Notes or Series C Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding and new Equipment Notes of corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures, in each case in accordance with the terms of Section 2.11(b) 2.02 of each such Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes in each case (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the each, a “Refinancing CertificateholdersCertificateholder”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to (A) in the case of any Refinancing Certificates issued in respect of Class B Certificates, the Administration Expenses, the Liquidity Obligations and the Class A Certificates and (B) in the case of any Refinancing Certificates issued in respect of Class C Certificates, the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B Certificates and (C) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, the Administration Expenses, the Liquidity Obligations, the Class A Certificates, the Class B Certificates, the Class C Certificates and, if applicable, any other class of Additional Certificates that rank senior, in priority of payment of “Expected Distributions” under this Agreement, to such Refinancing Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Spirit and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Class C Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination subordination, as applicable, of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the initial Liquidity Facilities, (B) in the case of any Refinancing Certificates issued in respect of any Class C Certificates, shall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B Certificates and (C) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, shall be subordinated, at least, to the Administration Expenses, the Liquidity FacilityObligations, if anythe Class A Certificates, the Class B Certificates and the Class C Certificates; provided that, (x) in each case, Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies shall have been obtained and (y) in the case of clause (A) the prior written consent of the Class A Liquidity Provider shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta Spirit but may be issued to any of DeltaSpirit’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the such Refinancing Certificates from such Affiliate to any other Affiliate of Delta Spirit shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms in clauses (i) to (v) of this Section 8.01(c) shall be deemed to not materially adversely affect any of the Trustee’s rights and obligations and shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Class A Liquidity Provider’s consent right in clause (y) to the proviso to Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates issued in respect of a Class of Certificates with a Liquidity Facility shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, Provider under such Liquidity Facility and the termination of the Class B such Liquidity Facility, if any, Facility upon the issuance of the such Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider (other than the Liquidity Provider of such terminated Liquidity Facility) a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a)(y) hereof, with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or the Subordination Agent in order (i) to cure any modification cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), 3.6(f)(other than the last sentence thereof), or the second sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 10.6 (collectively, together with this proviso and Section 9.1, the “Delta "Northwest Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Northwest with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement Financing Agreement, Leased or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d)Owned Aircraft Indenture, then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaNorthwest. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by Northwest under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by Northwest under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.an Owned Aircraft
Appears in 1 contract
Samples: Intercreditor Agreement (Northwest Airlines Holdings Corp/Pred)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a)hereof, with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f)or the second sentence of Section 10.6 (collectively, 3.05(m), 4.01(a)(ii) or 4.01(c), together with this proviso of and Section 8.01(a9.1(c), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d"Atlas Provisions") or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Atlas with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (1) Subject to any consents of the Required Lenders or all of the Lenders required pursuant to Sections 12.2(2) and 12.2(3), respectively, and any other provisions of this Agreement and any other Loan Document which expressly require the consent, approval or authorization of the Required Lenders or all of the Lenders, this Agreement and any other Loan Document may be 109
(2) Notwithstanding anything in Section 12.2(1) to the contrary (but subject to the provisions of Section 2.7(b) and (c), and Section 12.2(3) below)), Administrative Agent will not, without the written consent of the Required Lenders (subject to any standard of reasonability as may be expressly set forth in the Loan Documents), (a) This Agreement may not be supplementedexecute and deliver any material amendment, amended modification or modified without supplement of the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) Loan Documents or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates instrument waiving or consenting to a departure from any of the related Class evidencing Fractional Undivided Interests in material requirements of the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (Loan Documents, including, without limitation, without the consent any material amendment, modification or supplement of, or any waiver or departure from any of the Certificateholders to material requirements of, the extent permitted thereby, provisions of Section 9.01 thereof3.1 (Insurance) (other than Section 3.1(1)(h)), the Subordination Agent and each Liquidity ProviderSection 4.2 (Cash Management Account), Section 4.5 (Excess Cash Flow; providedExcess Cash Flow Sweep Account), however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order Section 9.3 (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(dControl; Management); provided further, however, that, if such supplement, amendment or modification Section 12.23 (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(bAssignments and Participations), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(aArticle 14 (Administrative Agent), the last sentence definitions of Section 8.01(a“Additional Collateral” (including the forms of Additional Collateral permitted to be provided pursuant to this Agreement), “Eligible Assignee”, “Single Purpose Entity” and “Threshold Amount” set forth in Section 8.01(c)1.1, 8.01(d) or 9.06 (collectively, any provisions of the “Delta Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s payment obligations under any Operative Agreement or (z) is made Loan Documents which pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall their express terms require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
Required Lenders’ consent; (b) In after the event that the Subordination Agent, as the registered holder occurrence of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related documentan Event of Default, (i) if no Indenture waive any Event of Default shall have occurred and be continuing with respect which is the subject of any written notice of default given by Administrative Agent to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such IndentureXxxxxxxx; (ii) change declare the date on which any principal amount of, Premium, if anyLoans to be immediately due and payable, or interest on rescind any Equipment Note under such Indenture, is due or payabledeclaration; (iii) create commence any Lien with respect action to foreclose the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder lien of the benefit Mortgage or conduct a foreclosure sale pursuant to a power of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenturesale; (iv) reduce accept a deed in lieu of foreclosure; (v) seek the percentage appointment of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for a receiver; (vi) file or approve any supplemental agreementplan in any bankruptcy proceeding involving Borrower, Guarantor or the consent of whose holders is required for Project; (vii) commence any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenturesuit on the Note to collect the Indebtedness; or (vviii) make commence any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates suit on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees Guaranty or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) any Qualified Guaranty to collect the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance guaranteed amounts; or (c) after any foreclosure of the Class B Certificates and become effective upon the accession hereto lien of the Class B Trustee and Mortgage or acceptance of a deed in lieu of foreclosure, (if applicablei) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
adopt a Post-Foreclosure Plan or (ii) in appoint a property manager for the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any Project other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment than in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificatesapproved Post-Foreclosure Plan.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Loan Agreement (Alexanders Inc)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics provisions for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding 49 Intercreditor Agreement (2017-2) Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If (x) Series B A Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series B A Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures or (y) at any time following the payment in full of the Series A Equipment Notes (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series A Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures, in each case, in accordance with the terms of Section 2.11(b) 2.02 of each such Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class AA Certificates, and, if applicable, the Class A Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:: 50 Intercreditor Agreement (2017-2)
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B A Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
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Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the initial Liquidity Facilities and (B) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, shall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B Certificates; provided that, in each case, Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Facility, if anyProviders shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time and from time to time. Series B If any series of Additional Equipment Notes are issued under any Indenture Indenture, each such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of such series of Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of A Certificates and the Class B Certificates and, if applicable, any other Additional Certificates that rank senior in right of payment to such Additional Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
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Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Primary Liquidity Facility, any amendment pursuant to Section 3.6(c)(ii) hereof with respect to any Replacement Above-Cap Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent Agent, the Policy Provider and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(d), 9.1(e) or omission 9.1(f) hereof or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(iiSection 3.6(f) or 4.01(c), this proviso of Section 8.01(a(other than the last sentence thereof), the last sentence of this Section 8.01(a), Section 8.01(c), 8.01(d9.1(a) or 9.06 this proviso (collectively, the “Delta "Northwest Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Primary Liquidity Provider or replacement Depositary or of Delta Northwest with respect to Delta’s its ability to replace any Primary Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Leased Aircraft Indenture, Owned Aircraft Indenture or Operative Agreement or or, (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaNorthwest. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby Certificateholder, the Policy Provider and each Primary Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(d) or 9.1(e) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.04Sections 2.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or any Policy. Notwithstanding any provision to the contrary contained herein, any modification to (x) Section 2.4(b), 3.2 or 3.3 hereof which would change the priority of payments to the Above-Cap Reserve Account (other than a change in priority to provide for distributions to the holders of Class E Certificates being made prior to the application of any amount required to fund the Above-Cap Reserve Account pursuant to clause "eleventh" of Section 2.4(b), clause "twelfth" of Section 3.2 and clause "thirteen" of Section 3.3 in connection with Section 9.1(f) hereof) or (y) any provision herein that would materially adversely affect the rights or materially increase the obligations of any Above-Cap Liquidity Provider under its Above-Cap Liquidity Facility shall also require the consent of the Above-Cap Liquidity Providers (or the applicable Above-Cap Liquidity Provider, in the case of clause (y) above). Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the any Replacement Primary Liquidity Facility for any Primary Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Primary Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Primary Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee, except that so long as the Final Distribution on the Class G-1 and Class G-2 Certificates has not been made or any Policy Provider Obligations remain outstanding and no Policy Provider Default shall have occurred and be continuing, the Subordination Agent shall request directions from the Policy Provider rather than the Class G-1 Trustee with respect to the Class G-1 Equipment Notes held in the Class G-1 Trust, or the Class G-2 Trustee with respect to the Class G-2 Equipment Notes held in the Class G-2 Trust, and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Primary Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentPolicy Provider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent, stipulated loss value or termination value payable by Northwest under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by Northwest under any Equipment Note issued under such Indenture; any Indenture in respect of an Owned Aircraft (other than in connection with a reoptimization relating to a Sale/Leaseback transaction for a Selected Aircraft), (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the any Collateral subject to such or Indenture Estate prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without of the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such related Indenture or deprive any Certificateholder holder of an Equipment Note issued under such Indenture of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with upon the exercise of remedies under Article IV of such Indenture; related Collateral or Indenture Estate or (iviii) reduce the percentage of the outstanding in principal amount of the outstanding Equipment Notes issued under any Indenture required to take or approve any action under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment NotesNotwithstanding any provision to the contrary contained herein, with respect to all so long as Northwest and/or its Affiliates holds or beneficially owns a majority of the Aircraft for which Series B Equipment Notes are at Class D Certificates or otherwise controls the time outstandingactions of the Class D Trustee, are redeemed and new Equipment Notes any consent or approval of corresponding series are to be issued the Class D Trustee or any Class D Certificateholder otherwise required in accordance with the terms of Section 2.11(bforegoing provisions shall not be required.
(d) of each Indenture If any Class D Certificates are issued, such Class D Certificates shall be subordinated to the Class G-1, Class G-2, Class C-1 and Class C-2 Certificates in the manner set forth in this Agreement and this Agreement shall be amended in accordance with this Agreement and Section 4(a)(v) 11 of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta the Trustees and the Subordination Agent to give effect to the issuance of any Class D Certificates, which amendment shall include, without limitation, provision for the Refinancing Class D Trust Trustee to be added as a party to this Agreement and for the definition of "Stated Interest Rate" to be revised, as appropriate, to reflect the issuance of the Class D Certificates (and the subordination thereof). No such amendment shall materially adversely affect any Trustee or the Policy Provider.
(e) Pursuant to the Indentures for the Owned Aircraft for Aircraft other than Selected Aircraft, if Northwest elects to redeem only the Series D Equipment Notes outstanding under such Indentures pursuant to the second paragraph of Section 2.11 thereof, Northwest may be required to simultaneously issue new Series D Equipment Notes (the "New Series D Equipment Notes") pursuant to the terms of such second paragraph. If New Series D Equipment Notes are issued, such Notes are required to be held by a new pass through trust (the "New Class D Trust") subject to the following terms same subordination provisions as the Class D Trust. In connection with the issuance of new class D pass through certificates by the New Class D Trust (the "New Class D Certificates"), this Agreement shall be amended by written agreement by the Trustees and conditionsthe Subordination Agent to provide for the subordination of the New Class D Certificates to the Class G-1, Class G-2, Class C-1 and Class C-2 Certificates in the same manner as the Class D Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of any New Class D Certificate shall include, without limitation:
(i) the Refinancing Trustee trustee of the New Class D Trust shall be added as a party to this Agreement and assuming Final Distributions have been paid on the Class D Certificates, the Class D Trustee shall cease to be a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “," "LTV Ratio," "Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.,"
Appears in 1 contract
Samples: Intercreditor Agreement (Northwest Airlines Inc /Mn)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; providedPROVIDED, howeverHOWEVER, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided furtherPROVIDED FURTHER, howeverHOWEVER, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta Provisions”), "CONTINENTAL PROVISIONS") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(c) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by Continental under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by Continental under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of the any Aircraft for which Series B Equipment Notes Class D Certificates are at the time outstandingissued, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Continental and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class A Certificates, the Class B Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class B and the Class A Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall include, without limitation:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio," "Stated Interest Rate," "Trust”, “," "Trust Agreement” and “," "Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates issued in respect of the Class B Certificates (but not any Additional Certificates) may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facility or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the such Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates issued in respect of the Class B Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, Provider under the Class B Liquidity Facility and the termination of the Class B Liquidity Facility, if any, Facility upon the issuance of the such Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time. Series B If any Additional Equipment Notes are issued under any Indenture Indenture, such Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of Delta and the Subordination Agent to provide for the subordination of the Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of A Certificates and the Class B Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics provisions for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If (x) Series A Equipment Notes or Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures or (y) at any time following the payment in full of the Series A Equipment Notes or Series B Equipment Notes (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or such series of 54 Intercreditor Agreement (2017-1) American Airlines Aircraft EETC Additional Equipment Notes) are at the time outstanding and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures, in each case, in accordance with the terms of Section 2.11(b) 2.02 of each such Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, including the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations Obligations, the Class AA Certificates, and, if applicable, the Class A Certificates and the Class A B Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class A Certificates”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class A Certificates, may rank pari passu with similar claims in respect of the initial Class A Liquidity Facility, (B) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the Class B Liquidity Facility, if any(C) in the case of any Refinancing Certificates issued in respect of any class of Additional Certificates generally subordinated to the Class AA Certificates, the Class A Certificates and the Class B Certificates (but not to any other class of Additional Certificates), may rank pari passu with similar claims in respect of the Class AA Liquidity Facility, the Class A Liquidity Facility and the Class B Liquidity Facility so long as the prior written consent of the Class AA Liquidity Provider, the Class A Liquidity Provider and the Class B Liquidity Provider shall have been obtained, and (D) in the case of any Refinancing Certificates issued in respect of all Additional Certificates to which clause (C) is not applicable, shall be subordinated to the Administration Expenses and the Liquidity Obligations relating to each of the Class AA Certificates, the Class A Certificates, the 55 Intercreditor Agreement (2017-1) American Airlines Aircraft EETC Class B Certificates and any more senior class of Additional Certificates; provided that, in each case, Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Providers shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series AA Equipment Notes, the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time and from time to time. Series B If any series of Additional Equipment Notes are issued under any Indenture Indenture, each such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of such series of Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of AA Certificates, the Class A Certificates, the Class B Certificates and, if applicable, any other Additional Certificates that rank senior in right of payment to such Additional Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and ; 56 Intercreditor Agreement (if applicable2017-1) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.American Airlines Aircraft EETC
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Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics provisions for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If (x) Series A Equipment Notes or Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures or (y) at any time following the payment in full of the Series A Equipment Notes or Series B Equipment Notes (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or such series of 56 A&R Intercreditor Agreement (2017-2) American Airlines Aircraft EETC Additional Equipment Notes) are at the time outstanding and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures, in each case, in accordance with the terms of Section 2.11(b) 2.02 of each such Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, including the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations Obligations, the Class AA Certificates, and, if applicable, the Class A Certificates and the Class A B Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class A Certificates”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class A Certificates, may rank pari passu with similar claims in respect of the initial Class A Liquidity Facility, (B) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the Class B Liquidity FacilityFacility and (C) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, if anyshall be subordinated to the Administration Expenses and the Liquidity Obligations relating to each of the Class AA Certificates, the Class A Certificates, the Class B Certificates and any more senior class of Additional Certificates; provided that, in each case, Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Providers shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series AA Equipment Notes, the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time and from time to time. Series B If any series of Additional Equipment Notes are issued under any Indenture Indenture, each such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of such series of Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of AA Certificates, the Class A Certificates, the Class B Certificates and, if applicable, any other Additional Certificates that rank senior in right of payment to such Additional Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
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Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of the Airlines and the Subordination Agent (which will execute such agreement as directed by the Airlines, to the extent such amendment is in accordance with this Section 8.01(a)) without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected), (iii) in order to give effect to substitution of any Aircraft pursuant to Section 7.04(f) of the related Indenture and other matters incidental thereto or (iv) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), ) or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Airline Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta an Airline with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Deltaan Airline’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Deltaeach affected Airline. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple instruments for such Replacement Liquidity Facilities Facility for a single TrustTrust (including without limitation clauses (i) and (ii) of Section 2.04(a) and clauses “first” through “fifth” of Section 3.02, in each case, with respect to the Replacement Liquidity Provider of such Replacement Liquidity Facility).
(ba) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.,
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.5(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) or omission Section 9.1(d) hereof or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.5(e), 3.05(eSection 3.5(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.5(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) Section 9.1(d), the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta "Continental Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c9.1(c) or pursuant to Section 8.01(d9.1(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a9.1(a), Section 9.1(c) or Section 8.01(c) or Section 8.01(d9.1(d), modify Section 2.042.4 or 3.2 hereof, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.5(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of any notice or for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such IndentureTrustee, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Primary Liquidity Facility, any amendment pursuant to Section 3.6(c)(ii)(z) hereof with respect to any Replacement Above-Cap Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee or the Subordination Agent in order (i) to cure any Liquidity Providers if such supplement, amendment or modification cures an ambiguity or omission inconsistency or to correct any mistakedoes not materially, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without the consent of Certificates or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d)Provider; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 2.4(a), 3.05(eSection 2.4(b), 3.05(fSection 3.2, Section 3.4, Section 3.6(e), 3.05(mSection 3.6(f), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), the second sentence of Section 8.01(c), 8.01(d) 10.6 or 9.06 this proviso (collectively, the “Delta JetBlue Provisions”), ) or (y) would otherwise adversely affect the interests of any a potential Replacement Primary Liquidity Provider or replacement Depositary or of Delta JetBlue with respect to Delta’s its ability to replace any Primary Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaJetBlue. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or therewith, (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4 or 3.2 hereof, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or either Policy or (iii) modify the definition of “Reserve Amount”. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Primary Liquidity Facility for any Primary Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Primary Liquidity Facility”, then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Primary Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, modification, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such series of such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as the Final Distribution on the Class G-1 Certificates and Class G-2 Certificates has not been made or any Policy Provider Amounts remain outstanding and no Policy Provider Default shall have occurred and be continuing, the Subordination Agent shall request directions from the Policy Provider rather than the Class G-1 Trustee with respect to the Series G-1 Equipment Notes held in the Class G-1 Trust or the Class G-2 Trustee with respect to the Series G-2 Equipment Notes held in the Class G-2 Trust and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof, provided that no such amendment, modification or waiver shall, without the consent of each affected Certificateholder and each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall Policy Provider (iw) reduce the amount of principal amount of, Premium, if any, or interest on, payable by JetBlue under any Equipment Note issued under such any Indenture or amend Schedule I of any Indenture; , (iix) change modify any of the date on which any principal amount of, Premium, if anyprovisions of Section 10.01, or interest on of Article II or III or Section 5.01, 5.02(c), 5.02(d), 6.01 or 6.02 of any Equipment Note under such Indenture, is due the definitions of “Collateral,” “Event of Default,” “Default,” “Majority in Interest of Note Holders,” “Three-Month LIBOR,” “Break Amount,” “Prepayment Premium” or payable; “Note Holder,” or the percentage of Note Holders required to take or approve any action under the Indentures, (iiiy) create reduce, modify or amend any indemnities in favor of the Loan Trustee or the Note Holders (except that the Loan Trustee may consent to any waiver or reduction of an indemnity payable to it), or (z) permit the creation of any Lien with respect to on the Collateral subject to such Indenture prior to (as defined in the relevant Indenture) or pari passu with any part thereof other than Permitted Liens (as defined in the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3Indentures) of such Indenture or deprive any Certificateholder Note Holder of the benefit of the Lien of such Indenture on such the Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.06(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c3.06(c), 3.05(e3.06(e), 3.05(f3.06(f) (other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(c3.06(l), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “"Delta Provisions”"), (y) would otherwise affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that Subject to Section 2.06, if the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections Section 4.01 and 4.04. Notwithstanding the foregoing; provided that no such amendment, modification, consent or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by Delta under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyNote.
(c) If Series B Equipment NotesNotwithstanding any provision to the contrary contained herein, with respect to all so long as Delta and/or its Affiliates holds or beneficially owns a majority in interest of the Aircraft for which Series B Equipment Notes are at Class D Certificates or otherwise controls the time outstandingactions of the Class D Trustee, are redeemed and new Equipment Notes any consent or approval of corresponding series are to be issued the Class D Trustee or any Class D Certificateholders otherwise required in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the foregoing provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificatesrequired.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.5(e)(v)(y) hereof with respect to any Replacement Primary Liquidity Facility, any amendment pursuant to Section 3.5(c)(iv) hereof with respect to any Replacement Above-Cap Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or the Subordination Agent in order (i) to cure any modification cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.5(e), 3.05(eSection 3.5(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.5(l), the last sentence of this Section 8.01(a9.1(a), the second sentence of Section 8.01(c), 8.01(d) 10.6 or 9.06 this proviso (collectively, the “Delta "Continental Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Primary Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any the Primary Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and Certificateholder, each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4 or 3.2 hereof, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Primary Liquidity Facility for any the Primary Liquidity Facility in accordance with Section 3.5(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Primary Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Primary Liquidity Facilities for a single an individual Trust.
(b) In . If the event that Replacement Above-Cap Liquidity Facility for the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent Above-Cap Liquidity Facility in accordance with the directions Section 3.5(c)(iv) hereof is to be comprised of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights more than one instrument as directed contemplated by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder definition of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B term "Replacement Above-Cap Liquidity Facility", if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) then each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party parties hereto agrees to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to amend this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificatesto incorporate appropriate mechanics for multiple Above-Cap Liquidity Facilities for an individual Trust.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.5(e)(v)(y) hereof with respect to any Replacement Primary Liquidity Facility, any amendment pursuant to Section 3.5(c)(iv) hereof with respect to any Replacement Above-Cap Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant applicable Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent Agent, each Liquidity Provider and each Liquidity Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or the Subordination Agent in order (i) to cure any modification cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.5(e), 3.05(eSection 3.5(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.5(l), the last sentence of this Section 8.01(a9.1(a), the second sentence of Section 8.01(c), 8.01(d) 10.6 or 9.06 this proviso (collectively, the “Delta "JetBlue Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Primary Liquidity Provider or replacement Depositary or of Delta JetBlue with respect to Delta’s its ability to replace any Primary Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(a), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaJetBlue. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby Certificateholder, each Liquidity Provider and each Liquidity Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4 or 3.2 hereof, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or any Policy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the a Replacement Primary Liquidity Facility for any Primary Liquidity Facility in accordance with Section 3.5(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Primary Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Primary Liquidity Facilities for an individual Trust. If a single Replacement Above-Cap Liquidity Facility for any Above-Cap Liquidity Facility in accordance with Section 3.5(c)(iv) hereof is to be comprised of more than one instrument as contemplated by the definition of the term "Replacement Above-Cap Liquidity Facility", then each of the parties hereto agrees to amend this Agreement to incorporate appropriate mechanics for multiple Above-Cap Liquidity Facilities for an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment NotesNote, receives a request for the giving of any notice or for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment NotesNote, the Indenture pursuant to which such Equipment Notes were issued or Indenture, the related Participation applicable Note Purchase Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenturecontinuing, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Series of Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that if at the time there is a Leading Policy Provider, the Subordination Agent shall request directions from the Leading Policy Provider rather than the Senior Trustee with respect to such Senior Equipment Notes, and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider, each Policy Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agentaffected Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall (ix) reduce the amount of principal amount of, Premium, if anyor interest payable by JetBlue, or interest onchange the time of payment or method of calculation of any amount, under any Equipment Note under such Indenture; Note, (iiy) change the date on which modify any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the TrustSection 5.01, the Trustee and the Certificates 5.02(c), 5.02(d), 6.02, 10.01, or of Article II or III of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement"Break Amount", Escrow and Paying Agent Agreement"Default", Escrow Agent"Event of Default", Escrow Receipts"Interest Period", Paying Agent"Majority in Interest of Note Holders", Paying Agent Account"Note Holder", Expected Distributions"Premium" or "Special Default" or the percentage of Note Holders required to take or approve any action under the Indenture or (z) reduce, Final Distributions and Pool Balance (and modify or amend any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement indemnities in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions favor of the Class B Liquidity Facility, provided Mortgagee or the Note Holders (except that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but Mortgagee may be issued consent to any waiver or reduction of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation an indemnity payable to it) or other organizational documents and any subsequent transfer of permit the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent creation of any of Lien on the Class A Trustee Collateral or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms part thereof (other than Permitted Liens (as provided defined in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.the
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of Delta and the Subordination Agent without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected) or (iii) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), ) or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple instruments for such Replacement Liquidity Facilities Facility for a single TrustTrust (including without limitation clauses (i) and (ii) of Section 2.04(a) and clauses “first” through “fifth” of Section 3.02, in each case, with respect to the Replacement Liquidity Provider of such Replacement Liquidity Facility).
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.occurred
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom Facilities and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the initial Liquidity Facilities and (B) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, shall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B Certificates; provided that in each case Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Facility, if anyProviders shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates issued in respect of a Class of Certificates with a Liquidity Facility shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, Provider under such Liquidity Facility and the termination of the Class B such Liquidity Facility, if any, Facility upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider (other than the Liquidity Provider of such terminated Liquidity Facility) a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time. Series B If any Additional Equipment Notes are issued under any Indenture Indenture, such Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of Delta and the Subordination Agent to provide for the subordination of the Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of A Certificates and the Class B Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.5(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding the Class A Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Class A Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each the Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or Trustee, the Subordination Agent in order and the Liquidity Provider if such supplement, amendment or modification (i) to cure any ambiguity is in accordance with Section 9.1(c) or omission Section 9.1(d) hereof or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, and without Certificates or the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d)Provider; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 2.4, Section 3.2, Section 3.5(e), 3.05(eSection 3.5(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.5(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) Section 9.1(d), the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta Southwest Provisions”), ) or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Southwest with respect to Delta’s its ability to replace any the Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c9.1(c) or pursuant to Section 8.01(d9.1(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaSouthwest. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each the Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a9.1(a), Section 9.1(c) or Section 8.01(c) or Section 8.01(d9.1(d), modify Section 2.042.4 or 3.2 hereof, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacility. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any the Liquidity Facility in accordance with Section 3.5(c) or (e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of any notice or for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee Trustee, and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights with respect to such Equipment Notes as directed by the Controlling Party, Party (subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof); provided that no such amendment, modification or waiver shall, without the consent of each affected Certificateholder and the Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by Southwest under any Equipment Note under such Indenture; (ii) or change the date on which time of payments or method of calculation of any principal amount of, Premium, if any, or interest on under any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyNote.
(c) If Series B Equipment Notes (or any series of Additional Equipment Notes, ) issued with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be re-issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase AgreementIndenture, such series of new re-issued Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity ProvidersTrustees. This Agreement shall be amended by written agreement of Delta Southwest and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”” (if applicable), “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom Facility and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if anyFacility so long as Ratings Confirmation and the prior written consent of the Liquidity Provider shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta Southwest but may be issued to any of DeltaSouthwest’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta Southwest shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be on the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c9.1(c) shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the The Liquidity Providers Provider hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c9.1(c) (subject to the Liquidity Provider’s consent right in Section 9.1(c)(iii)) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) Indenture, one or more additional series of Equipment Notes (the Note Purchase Agreement, Series B “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time and from time to time. Series B If any series of Additional Equipment Notes is issued under any Indenture Indenture, such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement with shall be amended by written agreement of Southwest and the Subordination Agent to provide for the subordination of the Additional Certificates to the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of A Certificates and the Class B Certificates and, if applicable, any previously issued class (or classes) of Additional Certificates (in order of their issuance) (subject to clause (iii) below). Such issuance and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee in its individual capacityTrustees. This Agreement shall be amended by written agreement of Delta Southwest and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement (including by way of an amendment and restatement) of FedEx and the Subordination Agent (which will execute such agreement as directed by FedEx, to the extent such amendment is in accordance with this Section 8.01(a)) without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected), (iii) in order to give effect to substitution of any Aircraft pursuant to Section 7.04(f) of the related Indenture and other matters incidental thereto or (iv) if such supplement, amendment or modification is in accordance with Section Section 8.01(c) or 8.01(d8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.02(b), 3.05(c3.05(c), 3.05(e3.05(e), 3.05(f3.05(f), 3.05(m3.05(m), 4.01(a)(ii4.01(a)(ii) or 4.01(c4.01(c), this proviso of Section Section 8.01(a), the last sentence of Section Section 8.01(a), Section ) or Section 8.01(c), 8.01(d8.01(d) or 9.06 9.06 (collectively, the “Delta FedEx Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta FedEx with respect to DeltaFedEx’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaFedEx’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section Section 8.01(a) or pursuant to Section Section 8.01(c) or pursuant to Section Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaFedEx. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section Section 8.01(a) or Section Section 8.01(c) or Section Section 8.01(d), modify Section Section 2.04, 3.02 3.02 or 3.03 3.03 hereof or any other provision relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple instruments for such Replacement Liquidity Facilities Facility for a single TrustTrust (including without limitation clauses (i) and (ii) of Section 2.04(a) and clauses “first” through “fifth” of Section 3.02, in each case, with respect to the Replacement Liquidity Provider of such Replacement Liquidity Facility).
(ba) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.01 and 4.044.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any such Equipment Note under such Indenture (other than any change in the principal amount of any such Equipment Note in connection with any substitution pursuant to Section 7.04(f) of such Indenture); (ii) change the date on which any principal amount of, Premium, if any, or interest on any such Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV IV of such Indenture or as otherwise permitted by such Indenture; (iviii) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(cb) If Series B (x) any series of Additional Equipment Notes, with respect to all of the Aircraft for which Series B such series of Additional Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of a corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures or (y) at any time following the payment in full at maturity or otherwise of the series of Additional Equipment Notes with respect to all of the Aircraft for which such series of Additional Equipment Notes are at the time outstanding and new Equipment Notes of a corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures, in each case in accordance with the terms of Section 2.11(b) 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreementsuch Indenture, such series of new Equipment Notes in each case (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the each, a “Refinancing CertificateholdersCertificateholder”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to in the case of any Refinancing Certificates issued in respect of any Additional Certificates, the Administration Expenses, the Liquidity Obligations and Obligations, the Class A AA Certificates, and, if applicable, any other class of Additional Certificates that rank senior, in priority of payment of “Expected Distributions” under this Agreement, to such Refinancing Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees Trustee in their its individual capacities capacity or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta FedEx and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination subordination, as applicable, of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Fedex Corp)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Trustee or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or ), Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics provisions for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement Agreement, or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, that without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If (x) Series A Equipment Notes or Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures or (y) at any time following the payment in full of the Series A Equipment Notes or Series B Equipment Notes (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series A Equipment Notes or Series B Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding and new Equipment Notes of corresponding series are to be issued with respect to all (but not less than all) of the Aircraft under the applicable Indentures, in each case, in accordance with the terms of Section 2.11(b) 2.02 of each such Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, including the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations Obligations, the Class AA Certificates, and, if applicable, the Class A Certificates and the Class A B Certificates and, if applicable, any previously issued class of Additional Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class A Certificates”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class A Certificates, may rank pari passu with similar claims in respect of the initial Class A Liquidity Facility, (B) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the Class B Liquidity FacilityFacility and (C) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, if anyshall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class AA Certificates, the Class A Certificates, the Class B Certificates and any Additional Certificates that rank senior in right of payment to the applicable Refinancing Certificates; provided that, in each case, Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Providers shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series AA Equipment Notes, the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time and from time to time. Series B If any series of Additional Equipment Notes are issued under any Indenture Indenture, each such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of such series of Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of AA Certificates, the Class A Certificates, the Class B Certificates and, if applicable, any other Additional Certificates that rank senior in right of payment to such Additional Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified by a written agreement of Spirit and the Subordination Agent without the consent of any Trustee or the Subordination Agent in order any Liquidity Provider (i) in order to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) in order to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of CertificatesCertificates or any Liquidity Provider (provided, and without that the consent of any Trustee or Liquidity Provider shall be required only if such Trustee’s interests (or the interests of the holders of the related Class of Certificates) or such Liquidity Provider’s interests, respectively, will be materially adversely affected) or (iii) if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), ) or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Spirit Provisions”), (y) would otherwise adversely affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta Spirit with respect to DeltaSpirit’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaSpirit’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaSpirit. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for the giving of notice or its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or issued, the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any such Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any such Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture or as otherwise permitted by such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If (x) the Series B Equipment Notes (or any series of Additional Equipment Notes), with respect to all of the Aircraft for which Series B Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures or (y) at any time following the payment in full of the Series B Equipment Note (or any series of Additional Equipment Notes) with respect to all of the Aircraft for which Series B Equipment Notes (or such series of Additional Equipment Notes) are at the time outstanding and new Equipment Notes of corresponding series are to be issued with respect to any or all of the Aircraft under the applicable Indentures, in each case in accordance with the terms of Section 2.11(b) 2.02 of each such Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes in each case (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the each, a “Refinancing CertificateholdersCertificateholder”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to (A) in the case of any Refinancing Certificates issued in respect of Class B Certificates, the Administration Expenses, the Liquidity Obligations and the Class A Certificates and (B) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, the Administration Expenses, the Liquidity Obligations, the Class A Certificates, the Class B Certificates and, if applicable, any other class of Additional Certificates that rank senior, in priority of payment of “Expected Distributions” under this Agreement, to such Refinancing Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Spirit and the Subordination Agent to give effect to the issuance of the any Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination subordination, as applicable, of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the initial Liquidity Facilities and (B) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, shall be subordinated, at least, to the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B Certificates; provided that, (x) in each case, Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies shall have been obtained and (y) in the case of clause (A) the prior written consent of the Class A Liquidity Facility, if anyProvider shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta Spirit but may be issued to any of DeltaSpirit’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the such Refinancing Certificates from such Affiliate to any other Affiliate of Delta Spirit shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms in clauses (i) to (v) of this Section 8.01(c) shall be deemed to not materially adversely affect any of the Trustee’s rights and obligations and shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Class A Liquidity Provider’s consent right in clause (y) to the proviso to Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates issued in respect of a Class of Certificates with a Liquidity Facility shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, Provider under such Liquidity Facility and the termination of the Class B such Liquidity Facility, if any, Facility upon the issuance of the such Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider (other than the Liquidity Provider of such terminated Liquidity Facility) a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each applicable Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series A Equipment Notes, the Series B Equipment Notes to the extent provided in the applicable and, if applicable, one or more series of Additional Equipment Notes under such Indenture, may be issued at any timetime and from time to time with respect to any or all of the Aircraft. Series B If any series of Additional Equipment Notes are issued under any Indenture Indenture, each such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (each, an “Additional Certificateholder”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of Spirit and the Subordination Agent to provide for the subordination of such class of Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of A Certificates, the Class B Certificates and, if applicable, any other Additional Certificates that rank senior, in priority of payment of “Expected Distributions” under this Agreement, to such Additional Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Spirit and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) or any amendment contemplated by hereof and the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; providedPROVIDED, howeverHOWEVER, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or the Subordination Agent in order (i) to cure any modification cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates; PROVIDED FURTHER, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, howeverHOWEVER, that, if such supplement, amendment or modification would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), the second sentence of Section 8.01(c), 8.01(d) 10.6 or 9.06 this proviso (collectively, the “Delta "CONTINENTAL Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d)Agreement, then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of Default such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any rent, supplemental agreement, rent or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended stipulated loss values payable by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued Continental under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B CertificatesLease.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement Agreement, the Parent Guarantee or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided provided, that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Amr Corp)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility, or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a) or 9.1(c), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider or the Policy Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta "America West Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta America West with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerica West. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(c) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such series of such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as the Final Distribution on the Class G Certificates has not been made or any Policy Provider Obligations remain outstanding and no Policy Provider Default shall have occurred and be continuing, the Subordination Agent shall request directions from the Policy Provider rather than the Class G Trustee with respect to the Series G Equipment Notes held in the Class G Trust, and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentPolicy Provider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by America West under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by America West under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of the any Aircraft for which Series B Equipment Notes Class D Certificates are at the time outstandingissued, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta America West and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class G Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class G Certificates. No such amendment shall materially adversely affect any Trustee, the Liquidity Provider, the Policy Provider or the holders of any Class of Certificates. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall include, without limitation:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B ," "Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Facilities," "Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “," "LTV Ratio," "Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit ," "Trust," "Trust Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.," "Controlling
Appears in 1 contract
Samples: Intercreditor Agreement (America West Airlines Inc)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.5(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification (i) is in accordance with Section 8.01(c9.1(c) or 8.01(d)Section 9.1(d) hereof or (ii) cures an ambiguity or inconsistency or does not materially adversely affect such Trustee or the holders of the related Class of Certificates or any Liquidity Provider; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 2.4, Section 3.2, Section 3.5(e), 3.05(eSection 3.5(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.5(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) Section 9.1(d), the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta Northwest Provisions”), ) or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Northwest with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c9.1(c) or pursuant to Section 8.01(d9.1(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaNorthwest. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a9.1(a), Section 9.1(c) or Section 8.01(c) or Section 8.01(d9.1(d), modify Section 2.042.4 or 3.2 hereof, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.5(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee Trustee, and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights with respect to such Equipment Notes as directed by the Controlling Party, Party (subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof); provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each affected Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by Northwest under any Equipment Note under such Indenture; (ii) Note, change the date on which time of payments or method of calculation of any principal amount of, Premium, if any, or interest on under any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyNote.
(c) If Series B Equipment Notes (or any series of Additional Equipment Notes, ) issued with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be re-issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v5(a)(i) of the Note Purchase Agreement, such series of new re-issued Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity ProvidersTrustees. This Agreement shall be amended by written agreement of Delta and the Subordination Agent parties hereto to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”” (if applicable), “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom Facilities and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if anyFacilities so long as Ratings Confirmation and the prior written consent of the Liquidity Providers shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta Northwest but may be issued to any of DeltaNorthwest’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta Northwest shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be on the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c9.1(c) shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c9.1(c) (subject to the Liquidity Providers’ consent right in Section 9.1(c)(iii)) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing CertificatesFacilities.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v5(a)(i) of the Note Purchase Agreement, Series B one or more additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time and from time to time. Series B If any series of Additional Equipment Notes is issued under any Indenture Indenture, such series of Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement with shall be amended by written agreement of the parties hereto to provide for the subordination of the Additional Certificates to the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of A Certificates and the Class B Certificates and, if applicable, any previously issued class (or classes) of Additional Certificates (in order of their issuance) (subject to clause (iii) below). Such issuance and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee in its individual capacityTrustees. This Agreement shall be amended by written agreement of Delta and the Subordination Agent parties hereto to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
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Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.06(e)(v)(3) or Section 3.06(c)(ii) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent Agent, the Policy Provider and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c3.06(c), 3.05(e3.06(e), 3.05(f3.06(f) (other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(c3.06(l), this proviso of this Section 8.01(a), the last sentence of Section 8.01(a), or Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”"DELTA PROVISIONS"), (y) would otherwise adversely affect the interests of any a potential Replacement Primary Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s its ability to replace any the Primary Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby thereby, the Policy Provider and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Primary Liquidity Facility for any the Primary Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Primary Liquidity Facility”", then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Primary Liquidity Facilities for a single Trust.
(b) In the event that Subject to Section 2.06, if the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, to the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections Section 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, ; provided that no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by Delta under any Equipment Note issued under any Indenture or delay the timing of any such Indenture; payment, (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the any Collateral subject to such Indenture prior to or to, pari passu with or subordinate to the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without of the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such related Indenture or deprive any Certificateholder holder of an Equipment Note issued under such Indenture of the benefit of the Lien of such Indenture on such upon the related Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; or (iviii) reduce the percentage of the outstanding in principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B outstanding Equipment Notes issued under any Indenture shall be issued required to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at take or approve any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding action under such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unlessIndenture without, in the case of clause the preceding clauses (i), (ii) thereofand (iii), the Class A Certificateholders consent of each Liquidity Provider, the Policy Provider and the Class A Liquidity Provider Trustee of each Trust (as determined in other than any Trust all the Class A Liquidity Provider’s reasonable judgmentCertificates of which are held or beneficially owned by Delta and/or any of its Affiliates) shall not whose Certificateholders would be adversely affected with respect thereby, the consent of each such Trustee to be given only at the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance direction of the Class B Certificates in compliance with holders of all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any Outstanding under such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B CertificatesTrust.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) or any amendment contemplated by hereof and the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, modification or the Subordination Agent in order (i) to cure any amendment cures an ambiguity or omission inconsistency or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates; PROVIDED FURTHER, and without the consent of any Liquidity Provider HOWEVER, that if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii3.6(e) or 4.01(c), this proviso of Section 8.01(a3.6(f) (other than the last sentence thereof), the last sentence of this Section 8.01(a), Section 8.01(c), 8.01(d9.1(a) or 9.06 the second sentence of Section 10.6 (collectively, together with this proviso, the “Delta Provisions”), "CONTINENTAL PROVISIONS") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Participation Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d)Lease, then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent modification or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of Default such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; PROVIDED that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any rent, supplemental agreement, rent or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended stipulated loss values payable by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued Continental under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B CertificatesLease.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement Agreement, the Parent Guarantee or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided provided, that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes (or Additional Equipment Notes), with respect to all of the Aircraft for which Series B Equipment Notes (or, as the case may be, Additional Equipment Notes) are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom Facilities and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the initial Liquidity Facilities and (B) in the case of any Refinancing Certificates issued in respect of any Additional Certificates, shall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B Certificates; provided, that in each case Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Facility, if anyProviders shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), and any related amendment of the Parent Guarantee described in Section 9.03 of the Indentures, shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided provided, that a condition to the issuance of any Refinancing Certificates issued in respect of a Class of Certificates with a Liquidity Facility shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, Provider under such Liquidity Facility and the termination of the Class B such Liquidity Facility, if any, Facility upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider (other than the Liquidity Provider of such terminated Liquidity Facility) a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B one additional series of Equipment Notes (the “Additional Equipment Notes”), which shall be subordinated in right of payment to the Series A Equipment Notes to and the extent provided in the applicable Series B Equipment Notes under such Indenture, may be issued at any time. Series B If any Additional Equipment Notes are issued under any Indenture Indenture, such Additional Equipment Notes shall be issued to the Class B Trust a new pass through trust (an “Additional Trust”) that issues Class B Certificates a class of pass through certificates (the “Additional Certificates”) to Class B Certificateholders certificateholders (the “Additional Certificateholders”) pursuant to a Class B pass through trust agreement (an “Additional Trust Agreement Agreement”) with a trustee (an “Additional Trustee”). In such case, this Agreement, including without limitation Sections 2.04, 3.01 and 3.02 hereof, shall be amended by written agreement of American and the Subordination Agent to provide for the subordination of the Additional Certificates to, and to provide for distributions on the Additional Certificates after payment of, the Administration Expenses, the Liquidity Obligations, the Class B Trustee. The issuance of A Certificates and the Class B Certificates (subject to clause (iii) below). Such issuance, and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility Rating Agencies and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect any of the Class A Trustee Trustees in its their individual capacitycapacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that Additional Certificates subject to the following terms and conditions shall apply to any such amendmentconditions:
(i) each of the Class B Additional Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, all Class B Related Terms “Class”, “Equipment Notes”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement”, and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect the issuance of the Class B Additional Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificatessubordination thereof);
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Amr Corp)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.06(e)(v)(y) with respect to any Replacement Liquidity Facility or any amendment contemplated by the last penultimate sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent Agent, the Policy Provider and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified (i) without the consent of any Trustee or the Subordination Agent in order (ix) to cure any ambiguity or omission or to correct any mistake, (iiy) to correct or supplement any provision, or (iiiz) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and (ii) without the consent of any Trustee, the Policy Provider or any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or Section 8.01(d); provided further, however, that, ) and Exhibit A hereto and (iii) without the consent of the Policy Provider if such supplement, amendment or modification is to give effect to a Replacement Liquidity Facility issued pursuant to the provisions of Section 3.06(e) so long as such supplement, amendment or modification shall not be adverse to the interests of the Policy Provider and the Policy Provider shall have received five Business Days' prior notice (xtogether with a copy) thereof. If any supplement, amendment or modification to this Agreement (i) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(cSection 3.06(c), 3.05(eSection 3.06(e), 3.05(fSection 3.06(f) (other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(cSection 3.06(1), this proviso of Section 8.01(a)sentence, the last sentence of Section 8.01(a), Section 8.01(c), Section 8.01(d) or Section 9.06 (collectively, the “Delta "American Provisions”"), (yii) would otherwise affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or the Policy Provider Indemnity and Inspection Agreement or (ziii) is made pursuant to the last penultimate sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby thereby, the Policy Provider and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last penultimate sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, Section 3.02 or Section 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to any Liquidity Facility or the Liquidity FacilitiesPolicy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. Each of the Liquidity Providers and the Policy Provider hereby agrees and confirms that (i) it shall be deemed to consent to the issuance of the New Class C Certificates, New Class D Certificates, Class E Certificates, New Series of Series C Equipment Notes, New Series of Series D Equipment Notes, Series E Equipment Notes and the amendments to this Agreement made in connection therewith in accordance with Section 8.01(c) or Section 8.01(d), as the case may be, and (ii) any such issuance shall not affect any of its respective obligations under its Liquidity Facility or the Policy, as applicable. The parties hereto agree that no amendments shall be made to this Agreement pursuant to Section 8.01(c), Section 8.01(d) or Exhibit A hereto unless each Rating Agency shall have provided written confirmation that the issuance of the New Class C Certificates, the New Class D Certificates or the Class E Certificates, as the case may be, will not cause the rating then in effect by such Rating Agency for any Class of Certificates (without regard, in the case of the Class G Certificates, to the Policy), to be withdrawn, suspended or downgraded. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that If the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, ; provided that no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by American under any Equipment Note under or delay the timing of any such Indenture; payment, (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the any Collateral subject to such Indenture prior to or to, pari passu with or subordinate to the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without of the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such related Indenture or deprive any Certificateholder holder of an Equipment Note issued under such Indenture of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with upon the exercise of remedies under Article IV of such Indenture; related Collateral or (iviii) reduce the percentage of the outstanding in principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B outstanding Equipment Notes issued under any Indenture shall be issued required to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at take or approve any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding action under such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unlessIndenture without, in the case of clause the preceding clauses (i), (ii) thereofand (iii), the Class A Certificateholders consent of each Liquidity Provider, the Policy Provider and the Class A Liquidity Provider Trustee of each Trust (as determined in other than any Trust all the Class A Liquidity Provider’s reasonable judgmentCertificates of which are held or beneficially owned by American Entities) shall not whose Certificateholders would be adversely affected with respect thereby, the consent of each such Trustee to be given only at the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance direction of the Class B Certificates in compliance with holders of all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any Outstanding under such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B CertificatesTrust.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility, or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a) or 9.1(c), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and Agent, each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider or the Policy Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta "America West Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta America West with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerica West. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(c) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity FacilitiesFacilities or the Policy. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes 55 59 were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds each series of such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee except that so long as the Final Distribution on the Class G Certificates has not been made or any Policy Provider Obligations remain outstanding and no Policy Provider Default shall have occurred and be continuing, the Subordination Agent shall request directions from the Policy Provider rather than the Class G Trustee with respect to the Series G Equipment Notes held in the Class G Trust, and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentPolicy Provider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by America West under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by America West under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of the any Aircraft for which Series B Equipment Notes Class D Certificates are at the time outstandingissued, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta America West and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class G Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class G Certificates. No such amendment shall materially adversely affect any Trustee, the Liquidity Provider or the Policy Provider. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class C Certificates subject to the following terms and conditionsshall include, without limitation:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio," "Stated Interest Rate," "Trust”, “," "Trust Agreement” and “," "Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (America West Airlines Inc)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.06(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c3.06(c), 3.05(e3.06(e), 3.05(f3.06(f)(other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(c3.06(l), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta "American Provisions”"), (y) would otherwise affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta American with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that Subject to Section 2.06, if the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections Section 4.01 and 4.04. Notwithstanding the foregoing; provided that no such amendment, modification, consent or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by American under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyNote.
(c) If Series B Equipment NotesClass D Certificates are issued, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent and the Trustees to provide for the subordination of such Class D Certificates to the Class A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class A-1 Certificates, the Class A-2 Certificates and the Class B Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall, without limitation:
(i) add the Refinancing Class D Trustee shall be added as a party to this Agreement;
(ii) revise the definitions of “"Cash Collateral Account", "Certificate”", “"Class”", “Class B Certificates”"Controlling Party", “"Equipment Notes", "Final Legal Distribution Date”", “"Liquidity Facility", "Liquidity Provider", "LTV Ratio", "Stated Interest Rate", "Trust”", “"Trust Agreement” " and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B "Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised", as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) hereof with respect to any Replacement Liquidity Facility or any amendment contemplated by the last sentence of this Section 8.01(a9.1(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and and, subject to clause (ii) of the proviso in Section 9.1(c), each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) or omission 9.1(d) hereof or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(d) or 8.01(d)hereof; provided further, however, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f) (other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a) or Section 9.1(c), the second sentence of Section 8.01(c), 8.01(d) 10.6 or 9.06 this proviso (collectively, the “Delta "Southwest Provisions”), ") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Southwest with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a9.1(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaSouthwest. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in Section 9.1(c) or the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(a), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by Southwest under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyAircraft.
(c) If Series B Equipment NotesIf, with respect to all of the Aircraft for which Series B Equipment Notes any Aircraft, Class C Certificates are at the time outstandingissued, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Southwest and the Subordination Agent to provide for the subordination of such Class C Certificates to the Class A-1 Certificates, the Class A-2 Certificates and the Class B Certificates substantially in the same manner as the Class B Certificates are subordinated hereunder to the Class A-1 Certificates and the Class A-2 Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class C Certificates subject to the following terms and conditionsshall include, without limitation:
(i) the Refinancing Trustee trustee of the Class C Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account", "Certificate”", “"Class”", “Class B Certificates”"Equipment Notes", “"Final Legal Distribution Date”", “"Liquidity Facilities", "Liquidity Provider", "LTV Ratio", "Stated Interest Rate", "Trust”", “"Trust Agreement” " and “"Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B C Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.06(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c3.06(c), 3.05(e3.06(e), 3.05(f3.06(f)(other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(c3.06(l), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “"Delta Provisions”"), (y) would otherwise affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that Subject to Section 2.06, if the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which 49 53 such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections Section 4.01 and 4.04. Notwithstanding the foregoing; provided that no such amendment, modification, consent or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of principal amount of, Premium, if any, or interest on, payable by Delta under any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyNote.
(c) If Series B Equipment NotesClass D Certificates are issued, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent and the Trustees to provide for the subordination of such Class D Certificates to the Class A-1 Certificates, the Class A-2 Certificates, the Class B Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class A-1 Certificates, the Class A-2 Certificates and the Class B Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall, without limitation:
(i) add the Refinancing Class D Trustee shall be added as a party to this Agreement;
(ii) revise the definitions of “"Cash Collateral Account", "Certificate”", “"Class”", “Class B Certificates”"Controlling Party", “"Equipment Notes", "Final Legal Distribution Date”", “"Liquidity Facility", "Liquidity Provider", "LTV Ratio", "Stated Interest Rate", "Trust”", “"Trust Agreement” " and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B "Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised", as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.6(e)(v)(y) or any amendment contemplated by the last sentence of this Section 8.01(a)hereof, with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)Agreement), the Subordination Agent and each Liquidity Provider; providedPROVIDED, howeverHOWEVER, that this Agreement may be supplemented, amended or modified without the consent of (x) any Trustee if such supplement, amendment or the Subordination Agent in order modification (i) to cure any ambiguity is in accordance with Section 9.1(c) hereof or omission or to correct any mistake, (ii) to correct cures an ambiguity or supplement any provision, inconsistency or (iii) to make any other provision in regard to matters or questions arising hereunder that will does not materially adversely affect the interests of any such Trustee or the holders of the related Class of Certificates, Certificates and without the consent of (y) any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c9.1(c) or 8.01(d)hereof; provided furtherPROVIDED FURTHER, howeverHOWEVER, that, if such supplement, amendment or modification (A) would (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b2.2(b), 3.05(cSection 3.6(e), 3.05(eSection 3.6(f)(other than the last sentence thereof), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a3.6(l), the last sentence of this Section 8.01(a9.1(a), Section 8.01(c9.1(c), 8.01(d) the second sentence of Section 10.6 or 9.06 this proviso (collectively, the “Delta Provisions”), "CONTINENTAL PROVISIONS") or (y) would otherwise adversely affect the interests of any a potential Replacement Liquidity Provider or replacement Depositary or of Delta Continental with respect to Delta’s its ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s its payment obligations under any Operative Agreement or (zB) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d9.1(c), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaContinental. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d9.1(c), modify Section 2.042.4, 3.02 3.2 or 3.03 hereof 3.3 hereof, relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility in accordance with Section 3.6(e) hereof is to be comprised of more than one instrument as contemplated by the definition of the term “"Replacement Liquidity Facility”", then each party of the parties hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single an individual Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued issued, or the related Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event Default (which, in the case of Default any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 4.1 and 4.04. Notwithstanding the foregoing4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination AgentProvider, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the amount of rent, supplemental rent or stipulated loss values payable by Continental under any Lease or reduce the amount of principal amount of, Premium, if any, or interest on, payable by Continental under any Equipment Note issued under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with Indenture in respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected therebyOwned Aircraft.
(c) If Series B Equipment Notes, with respect to all of the any Owned Aircraft for which Series B Equipment Notes are at the time outstandingContinental issues Class D Certificates, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta Continental and the Subordination Agent to provide for the subordination of such Class D Certificates to the Class A Certificates, the Class B Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class B and Class A Certificates. No such amendment shall materially adversely affect any Trustee. The amendment to this Agreement to give effect to the issuance of the Refinancing any Class D Certificates subject to the following terms and conditionsshall include, without limitation:
(i) the Refinancing Trustee trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of “"Cash Collateral Account," "Certificate”, “," "Class”, “Class B Certificates”, “," "Equipment Notes," "Final Legal Distribution Date”, “," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio," "Stated Interest Rate," "Trust”, “," "Trust Agreement” and “," "Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms " shall be revised, as appropriate, to reflect the issuance of the Class B D Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restrictedsubordination thereof); and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
Appears in 1 contract
Samples: Intercreditor Agreement (Continental Airlines Inc /De/)
Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v3.06(e)(v)(3) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereofof the Basic Agreement)), the Subordination Agent Agent, the Policy Provider and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c3.06(c), 3.05(e3.06(e), 3.05(f3.06(f) (other than the last sentence thereof), 3.05(m), 4.01(a)(ii) or 4.01(c3.06(l), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Depositary or of Delta with respect to Delta’s ability to replace any Liquidity Facility or the Depositary or with respect to Delta’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of Delta. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and the Class A Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to the Class A Certificates and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support may rank pari passu with similar claims in respect of the initial Class B Liquidity Facility, if any;
(iv) the Refinancing Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Refinancing Certificates to any Affiliate of Delta shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) shall not require the consent of any of the Trustees or the holders of Class A Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) and any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided that a condition to the issuance of any Refinancing Certificates shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, and the termination of the Class B Liquidity Facility, if any, upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates.
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.Section
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Amendments, Waivers, Etc. (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 3.05(e)(v) or any amendment contemplated by the last sentence of this Section 8.01(a), with the consent of holders of Outstanding Certificates of the related Class evidencing Fractional Undivided Interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement (including, without limitation, without the consent of the Certificateholders to the extent permitted thereby, Section 9.01 thereof)), the Subordination Agent and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee or the Subordination Agent in order (i) to cure any ambiguity or omission or to correct any mistake, (ii) to correct or supplement any provision, or (iii) to make any other provision in regard to matters or questions arising hereunder that will not materially adversely affect the interests of any Trustee or the holders of the related Class of Certificates, and without the consent of any Liquidity Provider if such supplement, amendment or modification is in accordance with Section 8.01(c) or 8.01(d); provided provided, further, however, that, if such supplement, amendment or modification (x) would directly or indirectly amend, modify or supersede, or otherwise conflict with, Section 2.02(b), 3.05(c), 3.05(e), 3.05(f), 3.05(m), 4.01(a)(ii) or 4.01(c), this proviso of Section 8.01(a), the last sentence of Section 8.01(a), Section 8.01(c), 8.01(d) or 9.06 (collectively, the “Delta American Provisions”), (y) would otherwise affect the interests of any potential Replacement Liquidity Provider or replacement Replacement Depositary or of Delta American with respect to DeltaAmerican’s ability to replace any Liquidity Facility or the Depositary or with respect to DeltaAmerican’s payment obligations under any Operative Agreement or (z) is made pursuant to the last sentence of this Section 8.01(a) or pursuant to Section 8.01(c) or pursuant to Section 8.01(d), then such supplement, amendment or modification shall not be effective without the additional written consent of DeltaAmerican. Notwithstanding the foregoing, without the consent of each Certificateholder affected thereby and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii), ) except as provided in the last sentence of this Section 8.01(a) or Section 8.01(c) or Section 8.01(d), modify Section 2.04, 3.02 or 3.03 hereof relating to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Liquidity Facilities. Nothing contained in this Section 8.01(a) shall require the consent of a Trustee at any time following the payment of Final Distributions with respect to the related Class of Certificates. If the Replacement Liquidity Facility for any Liquidity Facility is to be comprised of more than one instrument as contemplated by the definition of the term “Replacement Liquidity Facility”, then each party hereto agrees to amend this Agreement and the other Operative Agreements to incorporate appropriate mechanics for multiple Liquidity Facilities for a single Trust.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Notes, receives a request for its consent to any amendment, supplement, modification, approval, consent or waiver under such Equipment Notes, the Indenture pursuant to which such Equipment Notes were issued or the related Participation Agreement Agreement, any guaranty of the Parent or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent shall request directions with respect to each series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes and shall vote or consent in accordance with the directions of such Trustee and (ii) if any Indenture Event of Default shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed 55 Amended and Restated Intercreditor Agreement (2013-2) AA Aircraft EETC by the Controlling Party, subject to Sections 4.01 and 4.04. Notwithstanding the foregoing, without the consent of each Liquidity Provider and each Certificateholder holding Certificates representing a Fractional Undivided Interest in the Equipment Notes under the applicable Indenture held by the Subordination Agent, no such amendment, supplement, modification, approval, consent or waiver shall (i) reduce the principal amount of, Premium, if any, or interest on, any Equipment Note under such Indenture; (ii) change the date on which any principal amount of, Premium, if any, or interest on any Equipment Note under such Indenture, is due or payable; (iii) create any Lien with respect to the Collateral subject to such Indenture prior to or pari passu with the Lien thereon under such Indenture except such as are permitted by such Indenture; provided provided, that, without the consent of each Certificateholder, no such amendment, supplement, modification, approval, consent or waiver shall modify Section 3.03 or Section 9.02(a)(3) of such Indenture or deprive any Certificateholder of the benefit of the Lien of such Indenture on such Collateral, except as provided in connection with the exercise of remedies under Article IV of such Indenture; (iv) reduce the percentage of the outstanding principal amount of the Equipment Notes under such Indenture the consent of whose holders is required for any supplemental agreement, or the consent of whose holders is required for any waiver of compliance with certain provisions of such Indenture or of certain defaults thereunder or their consequences provided for in such Indenture; or (v) make any change in Section 4.05 or Section 9.02 of such Indenture, except to provide that certain other provisions of such Indenture cannot be modified or waived without the consent of each holder of an Equipment Note under such Indenture affected thereby.
(c) If Series B Equipment Notes or Series C Equipment Notes, with respect to all of the Aircraft for which Series B Equipment Notes or Series C Equipment Notes are at the time outstanding, are redeemed and new Equipment Notes of corresponding series are to be issued in accordance with the terms of Section 2.11(b) of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, such series of new Equipment Notes (the “Refinancing Equipment Notes”) shall be issued to a new pass through trust (a “Refinancing Trust”) that issues a class of pass through certificates (the “Refinancing Certificates”) to certificateholders (the “Refinancing Certificateholders”) pursuant to a pass through trust agreement (a “Refinancing Trust Agreement”) with a trustee (a “Refinancing Trustee”). A Refinancing Trust, a Refinancing Trustee and the Refinancing Certificates shall be subject to all of the provisions of this Agreement in the same manner as the Trust, the Trustee and the Certificates of the Class corresponding to the series of the refinanced Equipment Notes, including, the subordination of the Refinancing Certificates to the extent provided herein to the Administration Expenses, the Liquidity Obligations and Obligations, the Class A Certificates and, if applicable, the Class B Certificates. Such issuance of Refinancing Equipment Notes and Refinancing Certificates and the amendment of this Agreement as provided below shall require Ratings Confirmation with respect to each Class of Certificates then rated by the Class A Certificates Rating Agencies and shall not materially adversely affect any of the Trustees in their individual capacities or any of the Liquidity Providers. This Agreement shall be amended by written agreement of Delta American and the Subordination Agent to give effect to the issuance of the Refinancing Certificates subject to the following terms and conditions:
(i) the Refinancing Trustee shall be added as a party to this Agreement;
(ii) the definitions of “Certificate”, “Class”, “Class B Certificates”, “Class C Certificates”, “Final Legal Distribution Date”, “Trust”, “Trust Agreement” and 56 Amended and Restated Intercreditor Agreement (2013-2) AA Aircraft EETC “Controlling Party” (and such other applicable definitions) shall be revised, as appropriate, to reflect such issuance (and the subordination of the Refinancing Certificates and the Refinancing Equipment Notes);
(iii) the Refinancing Certificates may have the benefit of credit support similar to the initial Class B Liquidity Facility, if any, Facilities or different therefrom and claims for fees, interest, expenses, reimbursement of advances and other obligations arising from such credit support (A) in the case of any Refinancing Certificates issued in respect of the Class B Certificates, may rank pari passu with similar claims in respect of the initial Liquidity Facilities and (B) in the case of any Refinancing Certificates issued in respect of the Class C Certificates, shall be subordinated to the Administration Expenses, the Liquidity Obligations, the Class A Certificates and the Class B Certificates; provided, that in each case Ratings Confirmation with respect to each Class of Certificates then rated by the Rating Agencies and the prior written consent of the Liquidity Facility, if anyProviders shall have been obtained;
(iv) the Refinancing Certificates cannot be issued to Delta American but may be issued to any of DeltaAmerican’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the such Refinancing Certificates to any Affiliate of Delta American shall be similarly restricted; and
(v) the scheduled payment dates on the Refinancing Equipment Notes shall be the Regular Distribution Dates. The issuance of the Refinancing Certificates in compliance with all of the foregoing terms of this Section 8.01(c) ), and any related amendment of any guaranty of the Parent described in Section 9.03 of the Indentures, shall not require the consent of any of the Trustees or the holders of any Class A of Certificates. Each of the Liquidity Providers hereby agrees and confirms that it shall be deemed to consent to any issuance and amendment in accordance with this Section 8.01(c) (subject to the Liquidity Providers’ consent right in Section 8.01(c)(iii)) and that any such issuance and amendment shall not affect any of its respective obligations under the applicable Liquidity Facility, provided provided, that a condition to the issuance of any Refinancing Certificates issued in respect of a Class of Certificates with a Liquidity Facility shall be the payment in full of all amounts owed to the Class B Liquidity Provider, if any, Provider under such Liquidity Facility and the termination of the Class B such Liquidity Facility, if any, Facility upon the issuance of the Refinancing Certificates. The Subordination Agent shall deliver to each Trustee and each Liquidity Provider (other than the Liquidity Provider of such terminated Liquidity Facility) a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered to the Subordination Agent in connection with the issuance of any Refinancing Certificates.
(d) Pursuant to the terms of Section 2.02 of each Indenture and Section 4(a)(v) of the Note Purchase Agreement, Series B Equipment Notes, which shall be subordinated in right of payment to the Series A Equipment Notes to the extent provided in the applicable Indenture, may be issued at any time. Series B Equipment Notes issued under any Indenture shall be issued to the Class B Trust that issues Class B Certificates to Class B Certificateholders pursuant to a Class B Trust Agreement with the Class B Trustee. The issuance of the Class B Certificates and the amendment of this Agreement as provided below (x) shall require Ratings Confirmation with respect to the Class A Certificates, (y) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility and the Required Amount of the Class B Liquidity Facility would, at any date of determination, exceed the amount set forth in Schedule A attached hereto for the date most recently preceding such date of determination (assuming that, as of such date of determination, the Pool Balance of the Class B Certificates has been reduced by all Expected Distributions on the Class B Certificates in respect of all Distribution Dates prior to such date of determination), shall require the prior written consent of the Class A Liquidity Provider and (z) shall not materially adversely affect the Class A Trustee in its individual capacity. This Agreement shall be amended by written agreement of Delta and the Subordination Agent to give effect to the issuance of any Class B Certificates, provided that the following terms and conditions shall apply to any such amendment:
(i) each of the Class B Trustee and (if applicable) the Class B Liquidity Provider shall be added as a party to this Agreement, all Class B Related Terms shall be revised, as appropriate, to reflect the issuance of the Class B Certificates and become effective upon the accession hereto of the Class B Trustee and (if applicable) the Class B Liquidity Provider, and the terms “Final Legal Distribution Date” and “Stated Interest Rate” shall be revised to specify such date and rate for the Class B Certificates;
(ii) in the event that Class B Certificates are issued prior to the Delivery Period Termination Date, the definitions of Deposit Agreement, Escrow and Paying Agent Agreement, Escrow Agent, Escrow Receipts, Paying Agent, Paying Agent Account, Expected Distributions, Final Distributions and Pool Balance (and any other applicable definition) and the related provisions hereof shall be appropriately revised to reflect any applicable deposit and escrow arrangement in relation to the Class B Certificates;
(iii) the Class B Certificates may be rated by the Rating Agencies;
(iv) if the Class B Certificates are to have the benefit of a Class B Liquidity Facility, Section 3.05 and any other provisions hereof shall be revised to the extent necessary to reflect the terms and conditions of the Class B Liquidity Facility, provided that such revisions shall not materially adversely affect the Class A Liquidity Provider;
(v) the Class B Certificates cannot be issued to Delta but may be issued to any of Delta’s Affiliates so long as such Affiliate shall have bankruptcy remote and special purpose provisions in its certificate of incorporation or other organizational documents and any subsequent transfer of the Class B Certificates to any Affiliate of Delta shall be similarly restricted; and
(vi) the scheduled payment dates on Series B Equipment Notes shall fall on a Regular Distribution Date; and
(vii) nothing contained in this Section 8.01(d) shall permit any amendment that is otherwise prohibited by the second sentence of Section 8.01(a) unless, in the case of clause (ii) thereof, the Class A Certificateholders and the Class A Liquidity Provider (as determined in the Class A Liquidity Provider’s reasonable judgment) shall not be adversely affected with respect to the distribution of monies received by the Subordination Agent hereunder from the Equipment Notes or pursuant to the Class A Liquidity Facility. The issuance of the Class B Certificates in compliance with all of the foregoing terms of this Section 8.01(d) shall not require the consent of any of the Class A Trustee or the Class A Certificateholders. The Class A Liquidity Provider hereby agrees and confirms that it shall be deemed to consent to the issuance of the Class B Certificates and amendment in accordance with this Section 8.01(d) and any such issuance and amendment shall not affect any of its obligations under the Class A Liquidity Facility. The Subordination Agent shall deliver to the Class A Trustee and the Class A Liquidity Provider a copy of the amendments made to this Agreement and all opinions, certificates and other documents delivered in connection with the issuance of the Class B Certificates[Reserved].
(e) The parties hereto acknowledge that the Class B Related Terms have been included herein in contemplation of the issuance of Class B Certificates pursuant to Section 8.01(d) hereof. The parties hereto agree that prior to such issuance, the Class B Related Terms (other than as provided in Section 8.01(d) above and this Section 8.01(e)) shall be of no effect and shall be disregarded.
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