Remedies with Respect to Indenture Estate. (a) If an Indenture Event of Default shall have occurred and be continuing, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02, then and in every such case the Trustee shall be entitled to exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to this Article IV and may recover judgment in its own name as Trustee against the Company and Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the Company and all persons claiming under the Company wholly or partly therefrom. (b) The Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given written notice of such sale to the Company at least 30 days prior to the date of such sale or the date on which the Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Trustee or the Holder or Holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the Holders may exercise such right without including the Holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of effecting any sale, assignment, transfer or delivery for enforcement of the Lien of this Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Trustee may consider necessary or appropriate, with full power of substitution, the Company hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Trustee or any purchaser, the Company shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) The Company agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Trustee may take possession of all or any part of the Indenture Estate and, subject to the rights of the lessees under the Leases, may exclude the Company and all persons claiming under any of them wholly or partly therefrom. At the request of the Trustee, the Company shall promptly execute and deliver to the Trustee such instruments of title and other documents as the Trustee may deem necessary or advisable to enable the Trustee or an agent or representative designated by the Trustee, at such time or times and place or places as the Trustee may specify, to obtain possession, subject to the rights of the lessees under the Leases, of all or any part of the Indenture Estate. If the Company shall fail for any reason to execute and deliver such instruments and documents to the Trustee, the Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the Company wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and take possession of and remove the Indenture Estate, subject to the rights of the lessees under the Leases. Upon every such taking of possession, the Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem proper or as it may otherwise be directed to do so by a Majority in Interest. In each such case, and subject to the rights of the lessees under the Leases, the Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the Company relating to the Indenture Estate, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part thereof; and the Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the Company), and all other payments which the Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Trustee, and of all persons properly engaged and employed by the Trustee, including the reasonable expenses of the Trustee. Any action by the Trustee pursuant to this Section 4.03(c) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Trustee shall have obtained possession of an Item of Equipment, the Trustee shall not be obligated to cause any Person to use or operate such Item of Equipment or cause such Item of Equipment to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such Item of Equipment by any other Person unless (i) the Trustee, as directed by a Majority in Interest, shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to a Majority in Interest to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all liability for loss or damage to such Item of Equipment and for public liability and property damage resulting from use or operation of such Item of Equipment and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Trustee in its discretion to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all such liabilities. (e) If an Indenture Event of Default shall occur and be continuing, the Trustee may proceed to protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of any covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the Indenture Estate or any part thereof, or for the recovery of a judgment for the indebtedness secured hereby, or the enforcement of any other legal or equitable remedy available to a mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 6 contracts

Samples: Trust Indenture and Security Agreement (Trinity Industries Inc), Trust Indenture and Security Agreement (Trinity Industries Inc), Trust Indenture and Security Agreement (Trinity Industries Inc)

Remedies with Respect to Indenture Estate. (a) If an ~~Indenture~~ Event of Default described in Section 6.1(6) or (7) hereof shall have occurred and be continuing, the unpaid principal amount of all Equipment Notes then outstanding, together with all accrued and unpaid interest thereon and all other amounts due thereunder, shall immediately become due and payable, without any notice or action by the Trustee or any Holder of Equipment Notes. (b) If an Event of Default shall have occurred and be continuing, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section ~~4.02~~502 of the Base Indenture or Section 6.3(a) hereof, then and in every such case the Trustee shall be entitled to exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to ~~this~~ Article IV Five of the Base Indenture and Article Six hereof and may recover judgment in its own name as Trustee against the Company and Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the Company and all persons claiming under the Company wholly or partly therefrom. (bc) The Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given written notice of such sale to the Company at least 30 thirty (30) days prior to the date of such sale or the date on which the Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Trustee or the Holder or Holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the Holders may exercise such right without including the Holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of effecting any sale, assignment, transfer or delivery for enforcement of the Lien of ~~this~~ the Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Trustee may consider necessary or appropriate, with full power of substitution, the Company hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Trustee or any purchaser, the Company shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (cd) The Company agrees, to the fullest extent that it lawfully may, that, in case one or more of the ~~Indenture~~ Events of Default shall have occurred and be continuing, then, in every such case, the Trustee may take possession of all or any part of the Indenture Estate ~~and, subject to the rights of the lessees under the Leases,~~ and may exclude the Company and all persons claiming under any of them wholly or partly therefrom. At the request of the Trustee, the Company shall promptly execute and deliver to the Trustee such instruments of title and other documents as the Trustee may deem necessary or advisable to enable the Trustee or an agent or representative designated by the Trustee, at such time or times and place or places as the Trustee may specify, to obtain ~~possession, subject to the rights of the lessees under the Leases,~~ possession of all or any part of the Indenture Estate. If the Company shall fail for any reason to execute and deliver such instruments and documents to the Trustee, the Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the Company wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and take possession of and remove the Indenture Estate~~, subject to the rights of the lessees under the Leases~~. Upon every such taking of possession, the Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem proper or as it may otherwise be directed to do so by the Holders of a ~~Majority~~ majority in ~~Interest~~principal amount of the Outstanding Equipment Notes. In each such case~~, and subject to the rights of the lessees under the Leases~~, the Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the Company relating to the Indenture Estate, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part thereof; and the Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the Company), and all other payments which the Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Trustee, and of all persons properly engaged and employed by the Trustee, including the reasonable expenses of the Trustee. Any action by the Trustee pursuant to this Section ~~4.03(c~~6.3(d) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such ~~action and to the rights of the lessees under the Leases, if any~~action. (d) If an Indenture Event of Default occurs and is continuing and the Trustee shall have obtained possession of an Item of Equipment, the Trustee shall not be obligated to cause any Person to use or operate such Item of Equipment or cause such Item of Equipment to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such Item of Equipment by any other Person unless (i) the Trustee, as directed by a Majority in Interest, shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to a Majority in Interest to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all liability for loss or damage to such Item of Equipment and for public liability and property damage resulting from use or operation of such Item of Equipment and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Trustee in its discretion to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all such liabilities. (e) If an Indenture Event of Default shall occur and be continuing, the Trustee may proceed to protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of any covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the Indenture Estate or any part thereof, or for the recovery of a judgment for the indebtedness secured hereby, or the enforcement of any other legal or equitable remedy available to a mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 2 contracts

Samples: First Supplemental Indenture (CSX Corp), Second Supplemental Indenture (CSX Corp)

Remedies with Respect to Indenture Estate. (a) If After an Indenture Event of Default shall have occurred and so long as such Indenture Event of Default shall be continuing~~, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02~~, then and in every such case the ~~Trustee shall be entitled~~ Indenture Trustee, as assignee hereunder of the Lease or as mortgagee hereunder of the Equipment or otherwise, may, and when required pursuant to the provisions of Article VI hereof shall, subject to Sections 5.04 and 5.05, exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to Section 15 of the Lease and this Article IV V and may recover judgment in its own name as Indenture Trustee against the ~~Company and~~ Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all persons claiming under ~~the Company~~ any of them wholly or partly therefrom; provided, however, that nothing in this Indenture shall permit or require the Indenture Trustee to take any action contrary to, or to disturb, the Lessee's rights under the Lease, except in accordance with the provisions of the Lease. The Indenture Trustee, after the occurrence of any Indenture Event of Default, shall give the Owner Participant and the Owner Trustee 5 Business Days' (or such shorter period as practical) prior notice of the date before which the Indenture Trustee shall not exercise any remedy which would result in the exclusion of the Owner Trustee from the Indenture Estate or any part thereof; provided, that the failure to give such notice shall have no effect on any action taken by the Indenture Trustee. (b) ~~The~~ Subject to Section 5.04 and Section 5.05, the Indenture Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given ~~written~~ notice of such sale by registered mail to the ~~Company~~ Owner Trustee, the Owner Participant and the Lessee once at least 30 20 days prior to the date of such sale or the date on which the Indenture Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Indenture Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to; provided, however, that, notwithstanding any provision herein to the contrary, the Indenture Trustee shall not sell any of the Indenture Estate or exercise any other remedies which would result in the exclusion of the Owner Trustee from the Indenture Estate or any part thereof unless a declaration of acceleration has been made pursuant to Section 5.02; provided, further, that, in the event the circumstances contemplated by Section 5.04(c) exist, the Indenture Trustee shall not be allowed to deliver the notice required by this Section 5.03(b) until the earlier of (x) such time as such circumstances no longer exist or (y) the expiration of the 90 day period set forth in Section 5.04(c). Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Indenture Trustee or the ~~Holder~~ holder or ~~Holders~~ holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Indenture Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the ~~Holders~~ holders may exercise such right without including the ~~Holders~~ holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The ~~Company~~ Owner Trustee hereby irrevocably constitutes the Indenture Trustee the true and lawful attorney-in-fact of the ~~Company~~ Owner Trustee (in the name of the ~~Company~~ Owner Trustee or otherwise) for the purpose of ~~effecting~~ effectuating any sale, assignment, transfer or delivery for enforcement of the Lien of this Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Indenture Trustee may consider necessary or appropriate, with full power of substitution, the ~~Company~~ Owner Trustee hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Indenture Trustee or any purchaser, the ~~Company~~ Owner Trustee shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Indenture Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) ~~The Company~~ Subject to Section 5.04 and Section 5.05, the Owner Trustee agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Indenture Trustee may take possession of all or any part of the Indenture Estate ~~and, subject to the rights of the lessees under the Leases,~~ and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all persons claiming under any of them wholly or partly therefrom. At the request of the Indenture Trustee, the ~~Company~~ Owner Trustee shall promptly execute and deliver to the Indenture Trustee such instruments of title and other documents as the Indenture Trustee may deem necessary or advisable to enable the Indenture Trustee or an agent or representative designated by the Indenture Trustee, at such time or times and place or places as the Indenture Trustee may specify, to obtain ~~possession, subject to the rights of the lessees under the Leases,~~ possession of all or any part of the Indenture Estate. If the ~~Company~~ Owner Trustee shall fail for any reason to execute and deliver such instruments and documents to the Indenture Trustee, the Indenture Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the ~~Company~~ Lessee wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate ~~and~~ and, subject to Section 5.05, take possession of and remove the Indenture Estate~~, subject to the rights of the lessees under the Leases~~. Upon every such taking of possession, the Indenture Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem ~~proper or as it may otherwise be directed to do so by a Majority in Interest~~proper. In each such case, ~~and subject to~~ the ~~rights of the lessees under the Leases, the~~ Indenture Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the ~~Company~~ Owner Trustee relating to the Indenture Estate, as the Indenture Trustee shall deem best, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part ~~thereof~~thereof as the Indenture Trustee may determine; and the Indenture Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Indenture Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Indenture Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Indenture Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the ~~Company~~Indenture Estate), and all other payments which the Indenture Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Indenture Trustee, and of all persons properly engaged and employed by the Indenture Trustee, including the reasonable expenses of the Indenture Trustee. Any action by the Trustee pursuant to this Section 4.03(c) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Indenture Trustee shall have obtained possession of ~~an Item of Equipment~~a Unit, the Indenture Trustee shall not be obligated to ~~cause any Person to~~ use or operate such ~~Item of Equipment~~ Unit or cause such ~~Item of Equipment~~ Unit to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such ~~Item of~~ Unit or Equipment by any other Person unless (i) the ~~Trustee, as directed by a Majority in Interest,~~ Indenture Trustee shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to ~~a Majority~~ it in ~~Interest~~ its reasonable discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all liability for loss or damage to such ~~Item of Equipment~~ Unit and for public liability and property damage resulting from use or operation of such ~~Item of Equipment~~ Unit and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Indenture Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Indenture Trustee in its reasonable discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all such liabilities. (e) If an Indenture Event of Default shall occur and be continuing, the Trustee may proceed to protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of any covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the Indenture Estate or any part thereof, or for the recovery of a judgment for the indebtedness secured hereby, or the enforcement of any other legal or equitable remedy available to a mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 1 contract

Samples: Trust Indenture and Security Agreement (Union Tank Car Co)

Remedies with Respect to Indenture Estate. (a) If After an ~~Indenture~~ Event of Default shall have occurred and so long as such Event of Default shall be continuing~~, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02~~, then and in every such case the ~~Trustee shall be entitled~~ Indenture Trustee, as mortgagee hereunder of the Equipment or otherwise, may, and when required pursuant to the provisions of Article VI hereof shall, exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to this Article IV V and may recover judgment in its own name as Indenture Trustee against the ~~Company and~~ Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the ~~Company~~ Owner and all persons claiming under ~~the Company~~ any of them wholly or partly ~~therefrom~~therefrom and, without limiting the foregoing, shall have all of the rights and remedies granted to a secured creditor under Article 9 of the Uniform Commercial Code; provided, that the Indenture Trustee shall give the Owner twenty days’ prior written notice of its intention to sell any Unit (which shall be deemed “commercially reasonable”); provided that the requirement to provide such notice will be satisfied upon the giving of the notice required under clause (b) below. (b) The Indenture Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given ~~written~~ notice of such sale by registered mail to the ~~Company~~ Owner once at least 30 20 days prior to the date of such sale or the date on which the Indenture Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Indenture Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to; provided, however, that, notwithstanding any provision herein to the contrary, the Indenture Trustee shall not sell any of the Indenture Estate or exercise any other remedies which would result in the exclusion of the Owner from the Indenture Estate or any part thereof unless a declaration of acceleration has been made pursuant to Section 5.02 or the Equipment Notes shall have otherwise been accelerated as provided therein. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Indenture Trustee or the ~~Holder~~ holder or ~~Holders~~ holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale and may bid-in the Equipment Notes in whole or in part in payment of the purchase price at any such sale. The Indenture Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the ~~Holders~~ holders may exercise such right without including the ~~Holders~~ holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The ~~Company~~ Owner hereby irrevocably constitutes the Indenture Trustee the true and lawful attorney-in-fact of the ~~Company~~ Owner (in the name of the ~~Company~~ Owner or otherwise) for the purpose of ~~effecting~~ effectuating any sale, assignment, transfer or delivery for enforcement of the Lien of this Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Indenture Trustee may consider necessary or appropriate, with full power of substitution, the ~~Company~~ Owner hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Indenture Trustee or any purchaser, the ~~Company~~ Owner shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Indenture Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) The ~~Company~~ Owner agrees, to the fullest extent that it lawfully may, that, in case one or more of the ~~Indenture~~ Events of Default shall have occurred and be continuing, then, in every such case, the Indenture Trustee may take possession of all or any part of the Indenture Estate ~~and, subject to the rights of the lessees under the Leases,~~ and may exclude the ~~Company~~ Owner and all persons claiming under any of them wholly or partly therefrom. At the request of the Indenture Trustee, the ~~Company~~ Owner shall promptly execute and deliver to the Indenture Trustee such instruments of title and other documents as the Indenture Trustee may deem necessary or advisable to enable the Indenture Trustee or an agent or representative designated by the Indenture Trustee, at such time or times and place or places as the Indenture Trustee may specify, to obtain ~~possession, subject to the rights of the lessees under the Leases,~~ possession of all or any part of the Indenture Estate. If the ~~Company~~ Owner shall fail for any reason to execute and deliver such instruments and documents to the Indenture Trustee, the Indenture Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the ~~Company~~ Owner wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and take possession of and remove the Indenture Estate~~, subject to the rights of the lessees under the Leases~~. Upon every such taking of possession, the Indenture Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem ~~proper or as it may otherwise be directed to do so by a Majority in Interest~~proper. In each such case, ~~and subject to~~ the ~~rights of the lessees under the Leases, the~~ Indenture Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the ~~Company~~ Owner relating to the Indenture Estate, as the Indenture Trustee shall deem best, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part ~~thereof~~thereof as the Indenture Trustee may determine; and the Indenture Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Indenture Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Indenture Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Indenture Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the ~~Company~~Indenture Estate), and all other payments which the Indenture Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Indenture Trustee, and of all persons properly engaged and employed by the Indenture Trustee, including the reasonable expenses of the Indenture Trustee. Any action by the Trustee pursuant to this Section 4.03(c) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Indenture Trustee shall have obtained possession of ~~an Item of Equipment~~a Unit, the Indenture Trustee shall not be obligated to ~~cause any Person to~~ use or operate such ~~Item of Equipment~~ Unit or cause such ~~Item of Equipment~~ Unit to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such ~~Item of~~ Unit or Equipment by any other Person unless (i) the ~~Trustee, as directed by a Majority in Interest,~~ Indenture Trustee shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to ~~a Majority~~ it in ~~Interest~~ its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all liability for loss or damage to such ~~Item of Equipment~~ Unit and for public liability and property damage resulting from use or operation of such ~~Item of Equipment~~ Unit and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Indenture Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Indenture Trustee in its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all such liabilities. (e) ~~If an Indenture Event~~ Notwithstanding anything contained herein, so long as the Pass Through Trustee under the Pass Through Trust Agreement is the registered holder of ~~Default shall occur and be continuing~~any Equipment Note issued hereunder, the Indenture Trustee ~~may proceed~~ is not authorized or empowered to ~~protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of~~ acquire title to any ~~covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the~~ Indenture Estate or take any ~~part thereof,~~ action with respect to any Indenture Estate so acquired by it if such acquisition or action would cause the trust created by the Pass Through Trust Agreement to fail to qualify as a “grantor trust” for the recovery of a judgment for the indebtedness secured hereby, or the enforcement of any other legal or equitable remedy available to a mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable lawfederal income tax purposes. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 1 contract

Samples: Trust Indenture and Security Agreement (Gatx Corp)

Remedies with Respect to Indenture Estate. (a) If After an Indenture Event of Default shall have occurred and so long as such Indenture Event of Default shall be continuing~~, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02~~, then and in every such case the ~~Trustee shall be entitled~~ Indenture Trustee, as assignee hereunder of the Lease or as mortgagee hereunder of the Equipment or otherwise, may, and when required pursuant to the provisions of Article V hereof shall, subject to Sections 4.04 and 4.05, exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to Section 15 of the Lease and this Article IV and may recover judgment in its own name as Indenture Trustee against the ~~Company and~~ Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all persons claiming under ~~the Company~~ any of them wholly or partly therefrom; provided, however, that nothing in this Indenture shall permit or require the Indenture Trustee to take any action contrary to, or to disturb, the Lessee's rights under the Lease, except in accordance with the provisions of the Lease. (b) ~~The~~ Subject to Section 4.04 and Section 4.05, the Indenture Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given ~~written~~ notice of such sale by registered mail to the ~~Company~~ Owner Trustee, the Owner Participant and the Lessee once at least 30 20 days prior to the date of such sale or the date on which the Indenture Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Indenture Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to; provided, however, that, notwithstanding any provision herein to the contrary, the Indenture Trustee shall not sell any of the Indenture Estate or exercise any other remedies which would result in the exclusion of the Owner Trustee from the Indenture Estate or any part thereof unless a declaration of acceleration has been made pursuant to Section 4.02; provided further, that, in the event the circumstances contemplated by Section 4.04(c) exist, the Indenture Trustee shall not be allowed to deliver the notice required by this Section 4.03(b) (x) until the earlier of (1) such time as such circumstances no longer exist or (2) the expiration of the 90 day period set forth in Section 4.04(c) or (y) if the circumstances contemplated by the second proviso of Section 4.04(c) then exist. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Indenture Trustee or the ~~Holder~~ holder or ~~Holders~~ holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Indenture Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the ~~Holders~~ holders may exercise such right without including the ~~Holders~~ holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The ~~Company~~ Owner Trustee hereby irrevocably constitutes the Indenture Trustee the true and lawful attorney-in-fact of the ~~Company~~ Owner Trustee (in the name of the ~~Company~~ Owner Trustee or otherwise) for the purpose of ~~effecting~~ effectuating any sale, assignment, transfer or delivery for enforcement of the Lien of this Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Indenture Trustee may consider necessary or appropriate, with full power of substitution, the ~~Company~~ Owner Trustee hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Indenture Trustee or any purchaser, the ~~Company~~ Owner Trustee shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Indenture Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) ~~The Company~~ Subject to Section 4.04 and Section 4.05, the Owner Trustee agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Indenture Trustee may take possession of all or any part of the Indenture Estate ~~and, subject to the rights of the lessees under the Leases,~~ and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all persons claiming under any of them wholly or partly therefrom. At the request of the Indenture Trustee, the ~~Company~~ Owner Trustee shall promptly execute and deliver to the Indenture Trustee such instruments of title and other documents as the Indenture Trustee may deem necessary or advisable to enable the Indenture Trustee or an agent or representative designated by the Indenture Trustee, at such time or times and place or places as the Indenture Trustee may specify, to obtain ~~possession, subject to the rights of the lessees under the Leases,~~ possession of all or any part of the Indenture Estate. If the ~~Company~~ Owner Trustee shall fail for any reason to execute and deliver such instruments and documents to the Indenture Trustee, the Indenture Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the ~~Company~~ Lessee wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and, subject to Section 4.04 and Section 4.05, take possession of and remove the Indenture Estate~~, subject to the rights of the lessees under the Leases~~. Upon every such taking of possession, the Indenture Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem ~~proper or as it may otherwise be directed to do so by a Majority in Interest~~proper. In each such case, ~~and subject to~~ the ~~rights of the lessees under the Leases, the~~ Indenture Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the ~~Company~~ Owner Trustee relating to the Indenture Estate, as the Indenture Trustee shall deem best, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part ~~thereof~~thereof as the Indenture Trustee may determine; and the Indenture Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Indenture Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Indenture Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Indenture Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the ~~Company~~Indenture Estate), and all other payments which the Indenture Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Indenture Trustee, and of all persons properly engaged and employed by the Indenture Trustee, including the reasonable expenses of the Indenture Trustee. Any action by the Trustee pursuant to this Section 4.03(c) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Indenture Trustee shall have obtained possession of ~~an Item of Equipment~~a Unit, the Indenture Trustee shall not be obligated to ~~cause any Person to~~ use or operate such ~~Item of Equipment~~ Unit or cause such ~~Item of Equipment~~ Unit to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such ~~Item of~~ Unit or Equipment by any other Person unless (i) the ~~Trustee, as directed by a Majority in Interest,~~ Indenture Trustee shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to ~~a Majority~~ it in ~~Interest~~ its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all liability for loss or damage to such ~~Item of Equipment~~ Unit and for public liability and property damage resulting from use or operation of such ~~Item of Equipment~~ Unit and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Indenture Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Indenture Trustee in its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all such liabilities. (e) ~~If an Indenture Event~~ Notwithstanding anything contained herein, so long as the Pass Through Trustee under any Pass Through Trust Agreement is the registered holder of ~~Default shall occur and be continuing~~any Equipment Note issued hereunder, the Indenture Trustee ~~may proceed~~ is not authorized or empowered to ~~protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of~~ acquire title to any ~~covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the~~ Indenture Estate or take any ~~part thereof,~~ action with respect to any Indenture Estate so acquired by it if such acquisition or ~~for~~ action would cause the ~~recovery of a judgment for~~ trust created by the ~~indebtedness secured hereby,~~ Trust Agreement or the ~~enforcement of any other legal or equitable remedy available~~ Pass Through Trust Agreement to fail to qualify as a ~~mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law~~"grantor trust" for federal income tax purposes. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 1 contract

Samples: Trust Indenture and Security Agreement (Gatx Rail Corp)

Remedies with Respect to Indenture Estate. (a) If After an Indenture Event of Default shall have occurred and so long as such Indenture Event of Default shall be continuing~~, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02~~, then and in every such case the ~~Trustee shall be entitled~~ Indenture Trustee, as assignee hereunder of the Lease or as mortgagee hereunder of the Equipment or otherwise, may, and when required pursuant to the provisions of Article VI hereof shall, subject to Sections 5.04 and 5.05, exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to Section 15 of the Lease and this Article IV V and may recover judgment in its own name as Indenture Trustee against the ~~Company and~~ Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all persons claiming under ~~the Company~~ any of them wholly or partly therefrom; provided, however, that nothing in this Indenture shall permit or require the Indenture Trustee to take any action contrary to, or to disturb, the Lessee's rights under the Lease, except in accordance with the provisions of the Lease. The Indenture Trustee, after the occurrence of any Indenture Event of Default, shall give the Owner Participant and the Owner Trustee 10 Business Days' (or such shorter period as practical) prior notice of the date before which the Indenture Trustee shall not exercise any remedy which would result in the exclusion of the Owner Trustee from the Indenture Estate or any part thereof; provided, however, such notice period shall not be in addition to any other notice period provided herein and; provided, further, that the failure to give such notice shall have no effect on any action taken by the Indenture Trustee. (b) ~~The~~ Subject to Section 5.04 and Section 5.05, the Indenture Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given written notice of such sale to the Company at least 30 days prior to the date of such sale or the date on which the Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Trustee or the Holder or Holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the Holders may exercise such right without including the Holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of effecting any sale, assignment, transfer or delivery for enforcement of the Lien of this Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Trustee may consider necessary or appropriate, with full power of substitution, the Company hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Trustee or any purchaser, the Company shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request.either (c) ~~The Company~~ Subject to Section 5.04 and Section 5.05, the Owner Trustee agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Indenture Trustee may take possession of all or any part of the Indenture Estate ~~and, subject to the rights of the lessees under the Leases,~~ and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all persons claiming under any of them wholly or partly therefrom. At the request of the Indenture Trustee, the ~~Company~~ Owner Trustee shall promptly execute and deliver to the Indenture Trustee such instruments of title and other documents as the Indenture Trustee may deem necessary or advisable to enable the Indenture Trustee or an agent or representative designated by the Indenture Trustee, at such time or times and place or places as the Indenture Trustee may specify, to obtain ~~possession, subject to the rights of the lessees under the Leases,~~ possession of all or any part of the Indenture Estate. If the ~~Company~~ Owner Trustee shall fail for any reason to execute and deliver such instruments and documents to the Indenture Trustee, the Indenture Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the ~~Company~~ Lessee wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate ~~and~~ and, subject to Section 5.05, take possession of and remove the Indenture Estate~~, subject to the rights of the lessees under the Leases~~. Upon every such taking of possession, the Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem proper or as it may otherwise be directed to do so by a Majority in Interest. In each such case, and subject to the rights of the lessees under the Leases, the Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the Company relating to the Indenture Estate, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part thereof; and the Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the Company), and all other payments which the Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Trustee, and of all persons properly engaged and employed by the Trustee, including the reasonable expenses of the Trustee. Any action by the Trustee pursuant to this Section 4.03(c) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Indenture Trustee shall have obtained possession of ~~an Item of Equipment~~a Unit, the Indenture Trustee shall not be obligated to ~~cause any Person to~~ use or operate such ~~Item of Equipment~~ Unit or cause such ~~Item of Equipment~~ Unit to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such ~~Item of~~ Unit or Equipment by any other Person unless (i) the ~~Trustee, as directed by a Majority in Interest,~~ Indenture Trustee shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to ~~a Majority~~ it in ~~Interest~~ its reasonable discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all liability for loss or damage to such ~~Item of Equipment~~ Unit and for public liability and property damage resulting from use or operation of such ~~Item of Equipment~~ Unit and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Indenture Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Indenture Trustee in its reasonable discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all such liabilities. (e) ~~If an Indenture Event~~ Notwithstanding anything contained herein, so long as the Pass Through Trustee under any Pass Through Trust Agreement is the registered holder of ~~Default shall occur and be continuing~~any Equipment Note issued hereunder, the Indenture Trustee ~~may proceed~~ is not authorized or empowered to ~~protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of~~ acquire title to any ~~covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the~~ Indenture Estate or take any ~~part thereof,~~ action with respect to any Indenture Estate so acquired by it if such acquisition or ~~for~~ action would cause the ~~recovery of a judgment for~~ trust created by the ~~indebtedness secured hereby,~~ Trust Agreement or the ~~enforcement of any other legal or equitable remedy available~~ Pass Through Trust Agreement to fail to qualify as a ~~mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law~~"grantor trust" for federal income tax purposes. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 1 contract

Samples: Trust Indenture and Security Agreement (Union Tank Car Co)

Remedies with Respect to Indenture Estate. (a) If After an ----------------------------------------- Indenture Event of Default shall have occurred and so long as such Indenture Event of Default shall be continuing~~, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02~~, then and in every such case the ~~Trustee shall be entitled~~ Indenture Trustee, as assignee hereunder of the Lease or as mortgagee hereunder of the Equipment or otherwise, may, and when required pursuant to the provisions of Article V hereof shall, subject to Sections 4.4 and 4.5, exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to Section 15 of the Lease and this Article IV and may recover judgment in its own name as Indenture Trustee against the ~~Company and~~ Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all ~~persons~~ Persons claiming under ~~the Company~~ any of them wholly or partly therefrom; provided, however, that nothing contained in this Indenture shall permit or require the Indenture Trustee to take any action contrary to, or to disturb, the Lessee's rights under the Lease, except in accordance with the provisions of the Lease. (b) ~~The~~ Subject to Section 4.4 and Section 4.5, the Indenture Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given ~~written~~ notice of such sale by registered mail to the ~~Company~~ Owner Trustee, the Owner Participant and the Lessee once at least 30 20 days prior to the date of such sale or the date on which the Indenture Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Indenture Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to; provided, however, that, notwithstanding any provision herein to the contrary, the Indenture Trustee shall not sell any of the Indenture Estate or exercise any other remedies which would result in the exclusion of the Owner Trustee from the Indenture Estate or any part thereof unless a declaration of acceleration has been made pursuant to Section 4.2; provided further, that, in the event the circumstances contemplated by Section 4.4(c) exist, the Indenture Trustee shall not be allowed to deliver the notice required by this Section 4.3(b) (x) until the earlier of (1) such time as such circumstances no longer exist or (2) the expiration of the [90-day] period set forth in Section 4.4(c) or (y) if the circumstances contemplated by the second proviso of Section 4.4(c) then exist. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Indenture Trustee or the ~~Holder~~ holder or ~~Holders~~ holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Indenture Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the ~~Holders~~ holders may exercise such right without including the ~~Holders~~ holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The ~~Company~~ Owner Trustee hereby irrevocably constitutes the Indenture Trustee the true and lawful attorney-in-fact of the ~~Company~~ Owner Trustee (in the name of the ~~Company~~ Owner Trustee or otherwise) for the purpose of ~~effecting~~ effectuating any sale, assignment, transfer or delivery for enforcement of the Lien of this Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Indenture Trustee may consider necessary or appropriate, with full power of substitution, the ~~Company~~ Owner Trustee hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Indenture Trustee or any purchaser, the ~~Company~~ Owner Trustee shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Indenture Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) ~~The Company~~ Subject to Section 4.4 and Section 4.5, the Owner Trustee agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Indenture Trustee may take possession of all or any part of the Indenture Estate ~~and, subject to the rights of the lessees under the Leases,~~ and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all ~~persons~~ Persons claiming under any of them wholly or partly therefrom. At the request of the Indenture Trustee, the ~~Company~~ Owner Trustee shall promptly execute and deliver to the Indenture Trustee such instruments of title and other documents as the Indenture Trustee may deem necessary or advisable to enable the Indenture Trustee or an agent or representative designated by the Indenture Trustee, at such time or times and place or places as the Indenture Trustee may specify, to obtain ~~possession, subject to the rights of the lessees under the Leases,~~ possession of all or any part of the Indenture Estate. If the ~~Company~~ Owner Trustee shall fail for any reason to execute and deliver such instruments and documents to the Indenture Trustee, the Indenture Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the ~~Company~~ Lessee wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and, subject to Section 4.4 and Section 4.5, take possession of and remove the Indenture Estate~~, subject to the rights of the lessees under the Leases~~. Upon every such taking of possession, the Indenture Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem ~~proper or as it may otherwise be directed to do so by a Majority in Interest~~proper. In each such case, ~~and subject to~~ the ~~rights of the lessees under the Leases, the~~ Indenture Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the ~~Company~~ Owner Trustee relating to the Indenture Estate, as the Indenture Trustee shall deem best, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part ~~thereof~~thereof as the Indenture Trustee may determine; and the Indenture Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Indenture Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Indenture Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Indenture Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the ~~Company~~Indenture Estate), and all other payments which the Indenture Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Indenture Trustee, and of all persons properly engaged and employed by the Indenture Trustee, including the reasonable expenses of the Indenture Trustee. Any action by the Trustee pursuant to this Section 4.03(c) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Indenture Trustee shall have obtained possession of ~~an Item of Equipment~~a Unit, the Indenture Trustee shall not be obligated to ~~cause any Person to~~ use or operate such ~~Item of Equipment~~ Unit or cause such ~~Item of Equipment~~ Unit to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such ~~Item of~~ Unit or Equipment by any other Person unless (i) the ~~Trustee, as directed by a Majority in Interest,~~ Indenture Trustee shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to ~~a Majority~~ it in ~~Interest~~ its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all liability for loss or damage to such ~~Item of Equipment~~ Unit and for public liability and property damage resulting from use or operation of such ~~Item of Equipment~~ Unit and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Indenture Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Indenture Trustee in its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all such liabilities. (e) ~~If an Indenture Event~~ Notwithstanding anything contained herein, so long as the Pass Through Trustee under any Pass Through Trust Agreement is the registered holder of ~~Default shall occur and be continuing~~any Equipment Note issued hereunder, the Indenture Trustee ~~may proceed~~ is not authorized or empowered to ~~protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of~~ acquire title to any ~~covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the~~ Indenture Estate or take any ~~part thereof,~~ action with respect to any Indenture Estate so acquired by it if such acquisition or ~~for~~ action would cause the ~~recovery of a judgment for~~ trust created by the ~~indebtedness secured hereby,~~ Trust Agreement or the ~~enforcement of any other legal or equitable remedy available~~ Pass Through Trust Agreement to fail to qualify as a ~~mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law~~"grantor trust" for federal income tax purposes. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 1 contract

Samples: Trust Indenture and Security Agreement (General American Railcar Corp Ii)

Remedies with Respect to Indenture Estate. (a) If After an ----------------------------------------- Indenture Event of Default shall have occurred and so long as such Indenture Event of Default shall be continuing~~, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02~~, then and in every such case the ~~Trustee shall be entitled~~ Indenture Trustee, as assignee hereunder of the Lease or as mortgagee hereunder of the Equipment or otherwise, may, and when required pursuant to the provisions of Article V hereof shall, subject to Sections 4.4 and 4.5, exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to Section 15 of the Lease and this Article IV and may recover judgment in its own name as Indenture Trustee against the ~~Company and~~ Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all ~~persons~~ Persons claiming under ~~the Company~~ any of them wholly or partly therefrom; provided, however, that nothing contained in this Indenture shall permit or require the Indenture Trustee to take any action contrary to, or to disturb, the Lessee's rights under the Lease, except in accordance with the provisions of the Lease. The Indenture Trustee, after the occurrence of any Indenture Event of Default, shall give the Owner Participant and the Owner Trustee 10 Business Days' (or such shorter period as practical) prior notice of the date before which the Indenture Trustee shall not exercise any remedy which would result in the exclusion of the Owner Trustee from the Indenture Estate or any part thereof other than pursuant to Section 4.3(b). (b) ~~The~~ Subject to Section 4.4 and Section 4.5, the Indenture Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given ~~written~~ notice of such sale by registered mail to the ~~Company~~ Owner Trustee, the Owner Participant and the Lessee once at least 30 20 days prior to the date of such sale or the date on which the Indenture Trustee Trust Indenture and Security Agreement (GARC II 98-A) enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Indenture Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to; provided, however, that, notwithstanding any provision herein to the contrary, the Indenture Trustee shall not sell any of the Indenture Estate or exercise any other remedies which would result in the exclusion of the Owner Trustee from the Indenture Estate or any part thereof unless a declaration of acceleration has been made pursuant to Section 4.2; provided further, that, in the event the circumstances contemplated by Section 4.4(c) exist, the Indenture Trustee shall not be allowed to deliver the notice required by this Section 4.3(b) (x) until the earlier of (1) such time as such circumstances no longer exist or (2) the expiration of the 270-day period set forth in Section 4.4(c) or (y) if the circumstances contemplated by the second proviso of Section 4.4(c) then exist. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Indenture Trustee or the ~~Holder~~ holder or ~~Holders~~ holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Indenture Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the ~~Holders~~ holders may exercise such right without including the ~~Holders~~ holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The ~~Company~~ Owner Trustee hereby irrevocably constitutes the Indenture Trustee the true and lawful attorney-in-fact of the ~~Company~~ Owner Trustee (in the name of the ~~Company~~ Owner Trustee or otherwise) for the purpose of ~~effecting~~ effectuating any sale, assignment, transfer or delivery for enforcement of the Lien of this Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Indenture Trustee may consider necessary or appropriate, with full power of substitution, the ~~Company~~ Owner Trustee hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Indenture Trustee or any purchaser, the ~~Company~~ Owner Trustee shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Indenture Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) ~~The Company~~ Subject to Section 4.4 and Section 4.5, the Owner Trustee agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Indenture Trustee may take possession of all or any part of the Indenture Estate ~~and, subject to the rights of the lessees under the Leases,~~ and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all ~~persons~~ Persons claiming under any of them wholly or partly therefrom. At the request of the Indenture Trustee, the ~~Company~~ Owner Trustee shall promptly execute and deliver to the Indenture Trustee such instruments of title and other documents as the Indenture Trustee may deem necessary or advisable to enable the Indenture Trustee or an agent or representative designated by the Indenture Trustee, at such time or times and place or places as the Indenture Trustee may specify, to obtain ~~possession, subject to the rights of the lessees under the Leases,~~ possession of all or any part of the Indenture Estate. If the ~~Company~~ Owner Trustee shall fail for any reason to execute and deliver such instruments and documents to the Trust Indenture and Security Agreement (GARC II 98-A) Indenture Trustee, the Indenture Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the ~~Company~~ Lessee wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and, subject to Section 4.4 and Section 4.5, take possession of and remove the Indenture Estate~~, subject to the rights of the lessees under the Leases~~. Upon every such taking of possession, the Indenture Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem ~~proper or as it may otherwise be directed to do so by a Majority in Interest~~proper. In each such case, ~~and subject to~~ the ~~rights of the lessees under the Leases, the~~ Indenture Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the ~~Company~~ Owner Trustee relating to the Indenture Estate, as the Indenture Trustee shall deem best, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part ~~thereof~~thereof as the Indenture Trustee may determine; and the Indenture Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Indenture Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Indenture Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Indenture Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the ~~Company~~Indenture Estate), and all other payments which the Indenture Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Indenture Trustee, and of all persons properly engaged and employed by the Indenture Trustee, including the reasonable expenses of the Indenture Trustee. Any action by the Trustee pursuant to this Section 4.03(c) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Indenture Trustee shall have obtained possession of ~~an Item of Equipment~~a Unit, the Indenture Trustee shall not be obligated to ~~cause any Person to~~ use or operate such ~~Item of Equipment~~ Unit or cause such ~~Item of Equipment~~ Unit to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such ~~Item of~~ Unit or Equipment by any other Person unless (i) the ~~Trustee, as directed by a Majority in Interest,~~ Indenture Trustee shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to ~~a Majority~~ it in ~~Interest~~ its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all liability for loss or damage to such ~~Item of Equipment~~ Unit and for public liability and property damage resulting from use or operation of such ~~Item of Equipment~~ Unit and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Indenture Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Indenture Trustee in its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all such liabilities.. Trust Indenture and Security Agreement (GARC II 98-A) (e) ~~If an Indenture Event~~ Notwithstanding anything contained herein, so long as the Pass Through Trustee under any Pass Through Trust Agreement is the registered holder of ~~Default shall occur and be continuing~~any Equipment Note issued hereunder, the Indenture Trustee ~~may proceed~~ is not authorized or empowered to ~~protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of~~ acquire title to any ~~covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the~~ Indenture Estate or take any ~~part thereof,~~ action with respect to any Indenture Estate so acquired by it if such acquisition or ~~for~~ action would cause the ~~recovery of a judgment for~~ trust created by the ~~indebtedness secured hereby,~~ Trust Agreement or the ~~enforcement of any other legal or equitable remedy available~~ Pass Through Trust Agreement to fail to qualify as a ~~mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law~~"grantor trust" for federal income tax purposes. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 1 contract

Samples: Trust Indenture and Security Agreement (General American Railcar Corp Ii)

Remedies with Respect to Indenture Estate. (a) If After ----------------------------------------- an Indenture Event of Default shall have occurred and so long as such Indenture Event of Default shall be continuing~~, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02~~, then and in every such case the ~~Trustee shall be entitled~~ Indenture Trustee, as assignee hereunder of the Lease or as mortgagee hereunder of the Equipment or otherwise, may, and when required pursuant to the provisions of Article V hereof shall, subject to Sections 4.04 and 4.05, exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to Section 15 of the Lease and this Article IV and may recover judgment in its own name as Indenture Trustee against the ~~Company and~~ Indenture Estate and may take possession of all or any part of the Indenture Estate, and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all persons claiming under ~~the Company~~ any of them wholly or partly therefrom; provided, however, that nothing in this Indenture shall permit -------- ------- or require the Indenture Trustee to take any action contrary to, or to disturb, the Lessee's rights under the Lease, except in accordance with the provisions of the Lease. (b) ~~The~~ Subject to Section 4.04 and Section 4.05, the Indenture Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given ~~written~~ notice of such sale by registered mail to the ~~Company~~ Owner Trustee, the Owner Participant and the Lessee once at least 30 20 days prior to the date of such sale or the date on which the Indenture Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Indenture Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to; provided, however, that, -------- ------- notwithstanding any provision herein to the contrary, the Indenture Trustee shall not sell any of the Indenture Estate or exercise any other remedies which would result in the exclusion of the Owner Trustee from the Indenture Estate or any part thereof unless a declaration of acceleration has been made pursuant to Section 4.02; provided further, that, in the event the circumstances -------- ------- contemplated by Section 4.04(c) exist, the Indenture Trustee shall not be allowed to deliver the notice required by this Section 4.03(b) (x) until the earlier of (1) such time as such circumstances no longer exist or (2) the expiration of the 90 day period set forth in Section 4.04(c) or (y) if the circumstances contemplated by the second proviso of Section 4.04(c) then exist. Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Indenture Trustee or the ~~Holder~~ holder or ~~Holders~~ holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Indenture Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the ~~Holders~~ holders may exercise such right without including the ~~Holders~~ holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The ~~Company~~ Owner Trustee hereby irrevocably constitutes the Indenture Trustee the true and lawful attorney-in-fact of the ~~Company~~ Owner Trustee (in the name of the ~~Company~~ Owner Trustee or otherwise) for the purpose of ~~effecting~~ effectuating any sale, assignment, transfer or delivery for enforcement of the Lien of this Indenture, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Indenture Trustee may consider necessary or appropriate, with full power of substitution, the ~~Company~~ Owner Trustee hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Indenture Trustee or any purchaser, the ~~Company~~ Owner Trustee shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Indenture Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) ~~The Company~~ Subject to Section 4.04 and Section 4.05, the Owner Trustee agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Indenture Trustee may take possession of all or any part of the Indenture Estate ~~and, subject to the rights of the lessees under the Leases,~~ and may exclude the ~~Company~~ Owner Trustee and the Owner Participant and all persons claiming under any of them wholly or partly therefrom. At the request of the Indenture Trustee, the ~~Company~~ Owner Trustee shall promptly execute and deliver to the Indenture Trustee such instruments of title and other documents as the Indenture Trustee may deem necessary or advisable to enable the Indenture Trustee or an agent or representative designated by the Indenture Trustee, at such time or times and place or places as the Indenture Trustee may specify, to obtain ~~possession, subject to the rights of the lessees under the Leases,~~ possession of all or any part of the Indenture Estate. If the ~~Company~~ Owner Trustee shall fail for any reason to execute and deliver such instruments and documents to the Indenture Trustee, the Indenture Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the ~~Company~~ Lessee wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and, subject to Section 4.04 and Section 4.05, take possession of and remove the Indenture Estate~~, subject to the rights of the lessees under the Leases~~. Upon every such taking of possession, the Indenture Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem ~~proper or as it may otherwise be directed to do so by a Majority in Interest~~proper. In each such case, ~~and subject to~~ the ~~rights of the lessees under the Leases, the~~ Indenture Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the ~~Company~~ Owner Trustee relating to the Indenture Estate, as the Indenture Trustee shall deem best, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part ~~thereof~~thereof as the Indenture Trustee may determine; and the Indenture Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Indenture Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Indenture Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Indenture Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the ~~Company~~Indenture Estate), and all other payments which the Indenture Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Indenture Trustee, and of all persons properly engaged and employed by the Indenture Trustee, including the reasonable expenses of the Indenture Trustee. Any action by the Trustee pursuant to this Section 4.03(c) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Indenture Trustee shall have obtained possession of ~~an Item of Equipment~~a Unit, the Indenture Trustee shall not be obligated to ~~cause any Person to~~ use or operate such ~~Item of Equipment~~ Unit or cause such ~~Item of Equipment~~ Unit to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such ~~Item of~~ Unit or Equipment by any other Person unless (i) the ~~Trustee, as directed by a Majority in Interest,~~ Indenture Trustee shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to ~~a Majority~~ it in ~~Interest~~ its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all liability for loss or damage to such ~~Item of Equipment~~ Unit and for public liability and property damage resulting from use or operation of such ~~Item of Equipment~~ Unit and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Indenture Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Indenture Trustee in its discretion to protect the Indenture Estate and the Indenture Trustee, as trustee and individually, against any and all such liabilities. (e) ~~If an Indenture Event~~ Notwithstanding anything contained herein, so long as the Pass Through Trustee under any Pass Through Trust Agreement is the registered holder of ~~Default shall occur and be continuing~~any Equipment Note issued hereunder, the Indenture Trustee ~~may proceed~~ is not authorized or empowered to ~~protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of~~ acquire title to any ~~covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the~~ Indenture Estate or take any ~~part thereof,~~ action with respect to any Indenture Estate so acquired by it if such acquisition or ~~for~~ action would cause the ~~recovery of a judgment for~~ trust created by the ~~indebtedness secured hereby,~~ Trust Agreement or the ~~enforcement of any other legal or equitable remedy available~~ Pass Through Trust Agreement to fail to qualify as a ~~mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law~~"grantor trust" for federal income tax purposes. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 1 contract

Samples: Trust Indenture and Security Agreement (Gatx Rail Corp)

Remedies with Respect to Indenture Estate. (a) If After an Indenture Event of Default shall have occurred and so long as such Indenture Event of Default shall be continuing~~, and the Equipment Notes shall have been accelerated (and such acceleration shall not have been rescinded) pursuant to Section 4.02~~, then and in every such case the ~~Trustee shall be entitled~~ Indenture Trustee, as assignee hereunder of the Lease or as mortgagee hereunder of the Equipment or otherwise, may, and when required pursuant to the provisions of Article VI hereof shall, subject to Sections 5.04 and 5.05, exercise any or all of the rights and powers and pursue any and all of the remedies pursuant to Section 15 of the Lease and this Article IV V and may recover judgment in its own name as Indenture Trustee against the ~~Company and~~ Indenture Estate and may take possession of all or any part ~~of the Indenture Estate, and may exclude the Company and all persons claiming under the Company wholly or partly therefrom.~~of (b) ~~The~~ Subject to Section 5.04 and Section 5.05, the Indenture Trustee may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession, and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given ~~written~~ notice of such sale by registered mail to the ~~Company~~ Owner Trustee, the Owner Participant and the Lessee once at least 30 20 days prior to the date of such sale or the date on which the Indenture Trustee enters into a binding contract for a private sale, and any other notice which may be required by law, sell and dispose of the Indenture Estate, or any part thereof, or interest therein, at public auction to the highest bidder or at private sale in one lot as an entirety or in separate lots, and either for cash or on credit and on such terms as the Indenture Trustee may determine, and at any place (whether or not it be the location of the Indenture Estate or any part thereof) and time designated in the notice above referred to; provided, however, that, notwithstanding any provision herein to the contrary, the Indenture Trustee shall not sell any of the Indenture Estate or exercise any other remedies which would result in the exclusion of the Owner Trustee from the Indenture Estate or any part thereof unless a declaration of acceleration has been made pursuant to Section 5.02; provided, further, that, in the event the circumstances contemplated by Section 5.04(c) exist, the Indenture Trustee shall not be allowed to deliver the notice required by this Section 5.03(b) until the earlier of (x) such time as such circumstances no longer exist or (y) the expiration of the 90 day period set forth in Section 5.04(c). Any such public sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales, or for any such adjourned sale or sales, without further notice, and the Indenture Trustee or the ~~Holder~~ holder or ~~Holders~~ holders of any Equipment Notes, or any interest therein, may bid and become the purchaser at any such public sale. The Indenture Trustee may exercise such right without possession or production of the Equipment Notes or proof of ownership thereof, and as representative of the ~~Holders~~ holders of each series may exercise such right without including the ~~Holders~~ holders as parties to any suit or proceeding relating to foreclosure of any property in the Indenture Estate. The ~~Company~~ Owner Trustee hereby irrevocably constitutes the Indenture Trustee the true and lawful attorney-in-fact of the ~~Company~~ Owner Trustee (in the name of the ~~Company~~ Owner Trustee or otherwise) for the purpose of ~~effecting~~ effectuating any sale, assignment, transfer or delivery for enforcement of the Lien of this ~~Indenture~~Indenture in accordance with the terms hereof following the occurrence and continuance of an Indenture Event of Default, whether pursuant to foreclosure or power of sale or otherwise, to execute and deliver all such bills of sale, assignments and other instruments as the Indenture Trustee may consider necessary or appropriate, with full power of substitution, the ~~Company~~ Owner Trustee hereby ratifying and confirming all that such attorney or any substitute shall lawfully do by virtue hereof. Nevertheless, if so requested by the Indenture Trustee or any purchaser, the ~~Company~~ Owner Trustee shall ratify and confirm any such sale, assignment, transfer or delivery, by executing and delivering to the Indenture Trustee or such purchaser all bills of sale, assignments, releases and other proper instruments to effect such ratification and confirmation as may be designated in any such request. (c) The Company agrees, to the fullest extent that it lawfully may, that, in case one or more of the Indenture Events of Default shall have occurred and be continuing, then, in every such case, the Trustee may take possession of all or any part of the Indenture Estate and, subject to the rights of the lessees under the Leases, may exclude the Company and all persons claiming under any of them wholly or partly therefrom. At the request of the Trustee, the Company shall promptly execute and deliver to the Trustee such instruments of title and other documents as the Trustee may deem necessary or advisable to enable the Trustee or an agent or representative designated by the Trustee, at such time or times and place or places as the Trustee may specify, to obtain possession, subject to the rights of the lessees under the Leases, of all or any part of the Indenture Estate. If the Company shall fail for any reason to execute and deliver such instruments and documents to the Trustee, the Trustee may pursue all or part of the Indenture Estate wherever it may be found and may enter any of the premises of the Company wherever the Indenture Estate may be or be supposed to be and search for the Indenture Estate and take possession of and remove the Indenture Estate, subject to the rights of the lessees under the Leases. Upon every such taking of possession, the Trustee may, from time to time, at the expense of the Indenture Estate, make all such expenditures for maintenance, insurance, repairs, replacements, alterations, additions and improvements to any of the Indenture Estate, as it may deem proper or as it may otherwise be directed to do so by a Majority in Interest. In each such case, and subject to the rights of the lessees under the Leases, the Trustee shall have the right to use, operate, store, control or manage the Indenture Estate, and to carry on the business and to exercise all rights and powers of the Company relating to the Indenture Estate, including the right to enter into any and all such agreements with respect to the maintenance, operation, leasing or storage of the Indenture Estate or any part thereof; and the Trustee shall be entitled to collect and receive all tolls, rents, revenues, issues, income, products and profits of the Indenture Estate and every part thereof, without prejudice, however, to the right of the Trustee under any provision of this Indenture to collect and receive all cash held by, or required to be deposited with, the Trustee hereunder. Such tolls, rents, revenues, issues, income, products and profits shall be applied to pay the expenses of holding and operating the Indenture Estate and of conducting the business thereof, and of all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which the Trustee may be required or may elect to make, if any, for taxes, assessments, insurance or other proper charges upon the Indenture Estate or any part thereof (including the employment of engineers and accountants to examine, inspect and make reports upon the properties and books and records of the Company), and all other payments which the Trustee may be required or authorized to make under any provision of this Indenture, as well as just and reasonable compensation for the services of the Trustee, and of all persons properly engaged and employed by the Trustee, including the reasonable expenses of the Trustee. Any action by the Trustee pursuant to this Section 4.03(c) will in all respects be subject to compliance with any mandatory legal requirements applicable to any such action and to the rights of the lessees under the Leases, if any. (d) If an Indenture Event of Default occurs and is continuing and the Trustee shall have obtained possession of an Item of Equipment, the Trustee shall not be obligated to cause any Person to use or operate such Item of Equipment or cause such Item of Equipment to be used or operated directly or indirectly by itself or through agents or other representatives or to lease, license or otherwise permit or provide for the use or operation of such Item of Equipment by any other Person unless (i) the Trustee, as directed by a Majority in Interest, shall have been able to obtain insurance in kinds, at rates and in amounts satisfactory to a Majority in Interest to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all liability for loss or damage to such Item of Equipment and for public liability and property damage resulting from use or operation of such Item of Equipment and (ii) funds are available in the Indenture Estate to pay for all such insurance or, in lieu of such insurance, the Trustee is furnished with indemnification from the holders of the Equipment Notes or any other Person upon terms and in amounts satisfactory to the Trustee in its discretion to protect the Indenture Estate and the Trustee, as trustee and individually, against any and all such liabilities. (e) If an Indenture Event of Default shall occur and be continuing, the Trustee may proceed to protect and enforce this Indenture and the Equipment Notes by suits or proceedings in equity, at law or in bankruptcy, and whether for specific performance of any covenant or agreement or in execution or aid of any power herein granted, or for foreclosure hereunder, or the appointment of a receiver or receivers for the Indenture Estate or any part thereof, or for the recovery of a judgment for the indebtedness secured hereby, or the enforcement of any other legal or equitable remedy available to a mortgagee or a secured party under the Uniform Commercial Code of the relevant jurisdiction or any other applicable law. (f) If an Indenture Event of Default shall occur and be continuing, the Trustee and the Company shall give the "account debtor" (as defined in Article 9 of the Uniform Commercial Code of the relevant jurisdiction) under each Lease a notice in substantially the form of Exhibit C hereto. The Company hereby irrevocably constitutes the Trustee the true and lawful attorney-in-fact of the Company (in the name of the Company or otherwise) for the purpose of giving such notice.

Appears in 1 contract

Samples: Trust Indenture and Security Agreement (Union Tank Car Co)

Common use of Remedies with Respect to Indenture Estate Clause in Contracts