Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Engines and/or engines then installed thereon, the Borrower shall forthwith but in any event within 15 days of such occurrence give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below. 1. On or before the Business Day next following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower shall pay or cause to be paid to the Indenture Trustee an amount equal to the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of the Loan Certificates, or 2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution). (b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1). (c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will: (A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above; 2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with; 3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower: (a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or (b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2). 4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect. 5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine. 6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.
Appears in 2 contracts
Samples: Loan Agreement (Pinnacle Airlines Corp), Loan Agreement (Pinnacle Airlines Corp)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but promptly, and in any event event, within 15 three (3) days of after such occurrence occurrence, give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss. After an Event of Loss and until receipt by Lessor of the Stipulated Loss Value and all other amounts due under the Lease, Lessee shall continue to pay Basic Rent and the parties shall perform all of their other obligations under the Lease that remain possible of performance taking into consideration the Event of Loss. Lessee shall, within sixty (60) 45 days after such occurrence, give the Indenture Trustee Lessor written notice of its election to perform one of the following options (it being understood agreed that the failure to give such if Lessee has not have given Lessor notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1))election, the Borrower shall pay or cause to be paid to the Indenture Trustee an amount equal to the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower Lessee shall be deemed to have elected the option described in clause (ii) below):
(i) provide that no Notified Default has occurred and is continuing and subject to paythe satisfaction of the conditions contained in Section 10(c), on a date not more than 150 days after the occurrence of the Event of Loss (or, if earlier, the last day of the Term), convey or cause to be conveyed to Lessor, and shall pay, to be leased by Lessee hereunder in replacement of the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement Airframe and Engines with respect to any which the Event of Loss occurred, a Replacement Airframe or (together with the same number of Replacement Engine Engines as the number of Engines, if any, which were subject to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Actsuch Event of Loss), or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe Engines to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens and to have a remaining useful life, estimated residual value, value and utility at least equal to the Airframe and Engines, if any, so replaced (assuming that such Airframe and Engines were in the condition and repair required by the terms hereof) and to be an airframe that is the same make and model as the Airframe to be replaced thereby, or an improved make and model, and such Replacement Engines to be covered by a Power-by-the-Hour Agreement satisfactory to Lessor if the Aircraft was subject to a Power-by-the-Hour Agreement at the time of the Event of Loss; provided that, if Lessee has not performed its obligation to effect such replacement under this clause (i) during the 150-day period provided herein (or, if earlier, the last day of the Term), it shall give Lessor notice to such effect upon or before the expiration of such period and shall promptly pay on the third Business Day after the date of such notice to Lessor (or, if earlier, the last day of the Term), in immediately-available funds, the amount specified in clause (ii) below; or
(ii) pay to Lessor on the earlier to occur of the third Business Day following the date of receipt of insurance proceeds in respect of the Event of Loss or ninety (90) days following the date of the Event of Loss, the sum of (i) any amounts then accrued under this Lease (including Basic Rent due and payable hereunder), plus (ii) the Stipulated Loss Value of the Aircraft computed as of the Rent Payment Date next following the date on which the Event of Loss occurred, plus (iii) any Supplemental Rent and other amounts otherwise due and payable under the Operative Documents, plus (iv) any reasonable expenses and costs incurred in connection with such Event of Loss by Lessor, minus (v) any prepaid Rent attributable to the period following the date of such payment.
(b) In the event that Lessee has provided a Replacement Aircraft as provided in Section 10(a)(i) hereof, (i) this Lease shall continue with respect to such Replacement Aircraft as though no Event of Loss had occurred; (ii) Lessor shall, at the expense of Lessee, convey to Lessee "as-is, where-is", without recourse or warranty except for a warranty against Lessor's Liens, that all right, title and interest of Lessor in and to the Airframe and the Engine or Engines, if any, installed on the Airframe upon the occurrence of the Event of Loss by executing and delivering to Lessee such Replacement Airframe will on bills of sale and other documents and instruments as Lessee may reasonably request to evidence such date meet conveyance; (iii) Lessor shall, at the requirements request and expense of Section 5.01(a)(2Lessee, to the extent assignable, assign to Lessee all claims it may have against any other Person arising from the Event of Loss (other than with respect to any insurance maintained by Lessor, the Owner Participant or their Affiliates); and (iv) that provided no Special Default or Event of Notified Default has occurred and is continuing, orLessee shall be entitled to receive all insurance proceeds and proceeds from any award in respect of condemnation, confiscation, seizure or requisition, including any interest thereon, to the extent not previously applied to the purchase price of the Replacement Aircraft.
(bc) Lessee's right to substitute a Replacement Aircraft as provided in Section 10(a)(i) shall be subject to the fulfillment, as Lessee's sole cost and expense, in addition to the conditions continued in Section 10(a)(i), of the following conditions precedent:
(i) On the date of delivery of the Replacement Aircraft to Lessor (such date being referred to in this Section 10(c) as the "Replacement Closing Date"), no Notified Default shall have occurred and be continuing;
(ii) On the Replacement Closing Date, the following documents shall have been duly authorized, executed and delivered by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each such document (or, in the case of the FAA Xxxx of Sale, a photocopy thereof) shall have been delivered to Lessor:
(A) a Lease Supplement covering the Replacement Aircraft, which has been duly filed for recordation with the FAA;
(B) an FAA Xxxx of Sale covering the Replacement Aircraft, executed by the owner thereof in favor of Lessor, and dated the Replacement Closing Date;
(C) a full warranty (as to title) xxxx of sale, in form and substance satisfactory to Lessor, covering the Replacement Aircraft, executed by the owner thereof in favor of Lessor, dated the Replacement Closing Date;
(D) an assignment of manufacturer's and vendor's warranties with respect to the Replacement Aircraft;
(E) an assignment of any Power-by-the-Hour Agreement with respect to the Replacement Engine: Engines;
(iF) a description an acknowledgement from Embraer in form and substance satisfactory to Lessor that Lessor has all of the Engine suffering benefits of the Event Residual Value Guaranty with respect to the Replacement Aircraft;
(iii) On or before the Replacement Closing Date, Lessor shall have received such documents and evidence with respect to Lessee (including, without limitation, a certificate of Loss, which shall be identified by manufacturer’s serial number; (ii) a description Responsible Officer regarding the particulars of the Replacement Engine (includingAircraft and its compliance with the terms of this Lease), or the owner of the Replacement Aircraft, as Lessor may reasonably request in order to establish the consummation of the transaction contemplated by Section 10(a)(i) and this Section 10(c), the taking of all necessary corporate action in connection therewith and compliance with the conditions set forth in this Section 10(c), in each case, case in form and substance reasonably satisfactory to Lessor;
(iv) Lessor shall have received satisfactory evidence as to the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating compliance with Section 11 hereof with respect to the Replacement EngineAircraft;
(v) On the Replacement Closing Date, (A) Lessor shall receive good title to the Borrower will be Replacement Aircraft free and clear of Liens, other than Lessor Liens, (B) the owner Replacement Aircraft shall have been duly certified by the FAA as to type and airworthiness in accordance with the terms of such this Lease, and (C) application for registration of the Replacement EngineAircraft shall have been duly made with the FAA;
(vi) Lessor shall have received an appraisal reasonably satisfactory to it with respect to the Replacement Aircraft; and
(vii) Lessor, shall have received (A) an opinion of counsel to Lessee, reasonably satisfactory in form and substance to Lessor, to the effect that (x) the Replacement Aircraft is free and clear of all Liens except Permitted other than Lessor Liens, that such Replacement Engine will on such date meet (y) the requirements xxxx of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning sale referred to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(210(c)(ii)(C) with respect constitutes an effective instrument for conveying title to the Replacement Airframe and any Replacement Engine.
6. provide Engines, if any, to Lessor, and (z) all documents executed and delivered by Lessee pursuant to this Section 10(c) have been duly authorized executed and delivered by Lessee and constitute legal, valid and binding obligations of, and are enforceable against, Lessee in accordance with their respective terms, that no further action is necessary or advisable in order to establish and perfect the title of Lessor in the Replacement Aircraft and as to such other matters as Lessor may reasonably request; (B) an opinion of qualified FAA counsel (or opinions from counsel in such jurisdiction outside of the Borrower’s United States where the Aircraft may be registered) as to, in the case of FAA counsel, the due recordation of the Lease Supplement and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of Lessor in the Replacement Aircraft or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; and (C) an opinion of tax counsel selected by Lessor and reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry Lessee to the effect that such substitution will not result in adverse tax consequences to Lessor or Owner Participant that are not indemnified by the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained Lessee under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunderTax Indemnity Agreement, and evidence that Lessee has made provision for any such indemnification obligation under the Indenture Trustee will execute such documents and provide its consent Tax Indemnity Agreement in a manner satisfactory to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined hereinLessor.
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Republic Airways Holdings Inc), Aircraft Lease Agreement (Republic Airways Holdings Inc)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but promptly, and in any event event, within 15 days of Business Days after such occurrence occurrence, give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss. After an Event of Loss and until receipt by Lessor of the Stipulated Loss Value and all other amounts due under the Lease, Lessee shall continue to pay Basic Rent and the parties shall perform all of their other obligations under the Lease that remain possible of performance taking into consideration the Event of Loss. Lessee shall, within sixty (60) 45 days after such occurrence, give the Indenture Trustee Lessor written notice of its election to perform one of the following options (it being understood agreed that the failure to give if Lessee has not have given Lessor notice of such notice election, Lessee shall be deemed to have elected the option described in clause (ii) below:
(i) subject to the satisfaction of the conditions contained in Section 10(c), on a date not more than 150 days after the occurrence of the Event of Loss (or, if earlier, the last day of the Term), convey or cause to be conveyed to Lessor, and to be leased by Lessee hereunder in replacement of the Airframe and Engines with respect to which the Event of Loss occurred, a Replacement Airframe (together with the same number of Replacement Engines as the number of Engines, if any, which were subject to such Event of Loss), such Replacement Airframe and Replacement Engines to be free and clear of all Liens except Permitted Liens and to have a remaining useful life, estimated residual value, value and utility at least equal to the Airframe and Engines, if any, so replaced (assuming that such Airframe and Engines were in the condition and repair required by the terms hereof) and to be an election airframe that is the same make and model and same or later vintage as the Airframe to be replaced thereby, or an improved make and model; provided that, if Lessee has not performed its obligation to effect such replacement under this clause (i) during the 150-day period provided herein (or, if earlier, the last day of the option set forth in paragraph (1) below.
1. On Term), it shall give Lessor notice to such effect upon or before the Business Day next following expiration of such period and shall promptly pay on the 30th day after the date of such notice to Lessor (or, if earlier, the last day of the Term), in immediately-available funds, the amount specified in clause (ii) below; or
(ii) pay to Lessor on the earlier to occur of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the date of receipt of the insurance proceeds in respect of the Event of Loss or 120 days following the date of the Event of Loss, the sum of (i) any amounts then accrued under this Lease (including Basic Rent due and payable hereunder), plus (ii) the Stipulated Loss Value of the Aircraft computed as of the Rent Payment Date next following the date on which the Event of Loss occurred, plus (iii) any Supplemental Rent and other amounts otherwise due and payable hereunder plus (iv) any reasonable expenses and costs incurred in connection with such Event of Loss by Lessor, minus (but in v) any event not earlier than prepaid rent attributable to the period following the date of Borrower’s election such payment.
(b) In the event that Lessee has provided a Replacement Aircraft as provided in Section 10(a)(i) hereof, (i) this Lease shall continue with respect to make payment under this paragraph such Replacement Aircraft as though no Event of Loss had occurred; (1))ii) Lessor shall, at the Borrower shall pay expense of Lessee, convey to Lessee "as-is, where-is", without recourse or cause to be paid warranty except for a warranty against Lessor's Liens, all right, title and interest of Lessor in and to the Indenture Trustee an amount equal to Airframe and the aggregate amount of outstanding principal, (but without Make-Whole AmountEngine or Engines, if any), interest installed on the Airframe upon the occurrence of the Event of Loss by executing and delivering to Lessee such bills of sale and other amounts then due on or documents and instruments as Lessee may reasonably request to evidence such conveyance; (iii) Lessor shall, at the request and expense of Lessee, to the extent assignable, assign to Lessee all claims it may have against any other Person arising from the Event of Loss; and (iv) Lessee shall be entitled to receive all insurance proceeds and proceeds from any award in respect of condemnation, confiscation, seizure or requisition, including any interest thereon, to the Loan Certificatesextent not previously applied to the purchase price of the Replacement Aircraft.
(c) Lessee's right to substitute a Replacement Aircraft as provided in Section 10(a)(i) shall be subject to the fulfillment, oras Lessee's sole cost and expense, in addition to the conditions continued in Section 10(a)(i), of the following conditions precedent:
2. provided (i) On the date of delivery of the Replacement Aircraft to Lessor (such date being referred to in this Section 10(c) as the "Replacement Closing Date"), no Special Default or Event of Default shall have occurred and be continuing;
(ii) On the Replacement Closing Date, not later than the 90th day following documents shall have been duly authorized, executed and delivered by the occurrence respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each such Event document (or, in the case of Loss the FAA Xxxx of Sale, a photocopy thereof) shall have been delivered to Lessor:
(A) a Lease Supplement covering the Replacement Aircraft, which has been duly filed for recordation with the FAA;
(B) an FAA Xxxx of Sale covering the Replacement Aircraft, executed by the owner thereof in favor of Lessor, and dated the Replacement Closing Date;
(C) a full warranty (as to title) xxxx of sale, in form and substance satisfactory to 29 Lessor, covering the Replacement Aircraft, executed by the owner thereof in favor of Lessor, dated the Replacement Closing Date;
(D) an assignment of manufacturer's and vendor's warranties with respect to the Replacement Aircraft;
(iii) On or before the Replacement Closing Date, Lessor shall have received such documents and evidence with respect to Lessee (including, without limitation, a certificate of a Responsible Officer regarding the particulars of the Replacement Aircraft and its compliance with the terms of this Lease), or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien owner of the Trust Indenture pursuant Replacement Aircraft, as Lessor may reasonably request in order to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (establish the consummation of the same manufacturer transaction contemplated by Section 10(a)(i) and this Section 10(c), the taking of an equivalent or improved model as the Engine all necessary corporate action in connection therewith and suitable for installation and use on the Airframe and compatible compliance with the other Engine mortgaged hereunderconditions set forth in this Section 10(c), in each case owned by in form and substance reasonably satisfactory to Lessor;
(iv) Lessor shall have received satisfactory evidence as to the Borrower compliance with Section 11 hereof with respect to the Replacement Aircraft;
(v) On the Replacement Closing Date, (A) Lessor shall receive good title to the Replacement Aircraft free and clear of all Liens Liens, (other than Permitted LiensB) the Replacement Aircraft shall have been duly certified by the FAA as to type and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained airworthiness in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement EngineLease, and (C) register or consent application for registration of the Replacement Aircraft shall have been duly made with the FAA:
(vi) Lessor shall have received an appraisal reasonably satisfactory to it with respect to the registration with the International Registry Replacement Aircraft.
(vii) Lessor, shall have received (A) an opinion of the contract of sale counsel to Borrower Lessee, satisfactory in form and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred substance to above;
2. furnish a certificate of its independent insurance broker Lessor, to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(aw) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, Aircraft is free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet (x) the requirements xxxx of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect sale referred to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(210(c)(ii)(C) with respect constitutes an effective instrument for conveying title to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory Engines, if any, to the Indenture TrusteeLessor, with a supporting priority search certificate issued (y) all documents executed and delivered by the International Registry Lessee pursuant to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1this Section 10(c) and (4) above have been duly authorized executed and delivereddelivered by Lessee and constitute legal, valid and binding obligations of, and are enforceable against, Lessee in accordance with their respective terms and no further action is necessary or advisable in order to establish and perfect the title of Lessor in the Replacement Airframe Aircraft, and any Replacement Engines (together the “Replacement Property”z) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee Lessor is entitled to the benefits of 11 USC §U.S.C. Section 1110 with respect to the such Replacement Aircraft which includes the Replacement Property to the same extent as with respect to the replaced Aircraft immediately prior to the applicable Event preceding such replacement; and (B) an opinion of Loss, the Replacement Property has been duly subjected to the Lien qualified FAA counsel (or counsel in such jurisdiction outside of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that where the registrations with Aircraft may be registered) as to, in the International Registry required under clause (C) case of paragraph 1 above have been made. Upon compliance by FAA counsel, the Borrower with all due recordation of the terms Lease Supplement and all other documents or instruments the recordation of Section 5.01(c) applicable which is necessary to any perfect and protect the rights of Lessor in the Replacement Airframe or EngineAircraft or, in the case of counsel in another jurisdiction, the Airframe and any Engines suffering taking of all action necessary in such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute jurisdiction for such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.purposes; and
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Republic Airways Holdings Inc), Aircraft Lease Agreement (Republic Airways Holdings Inc)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or Aircraft during the AirframeTerm, any Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and in any event within 15 seven (7) days of after such occurrence occurrence) give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following "Casualty Termination Date" (which is defined as the earlier of of: (x) the 90th day following the occurrence of such Event of Loss date on which insurance proceeds are paid, or (y) the third Business Day following date which is the receipt of the insurance proceeds in respect of first Rent Payment Date occurring not less than 60 days after such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)Loss), the Borrower Lessee shall pay or cause to be paid to the Indenture Trustee Lessor an amount equal to the aggregate amount sum of outstanding principal(i) the Stipulated Loss Value of such Aircraft as of the Casualty Termination Date, plus (but without Make-Whole Amountii) if not previously paid by Lessee, if any), interest all other Rent due and other amounts then due payable on or in respect of the Loan Certificates, or
2prior to such Casualty Termination Date. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of Notwithstanding such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower Loss, Lessee's obligation to pay Basic Rent hereunder up to such Casualty Termination Date shall cause continue, such Basic Rate to be payable on the due date therefor. Upon payment in full of the Stipulated Loss Value for the Aircraft and other Rent payable as provided in the immediately preceding paragraph, (xx) this Lease (except for Supplemental Rent obligations surviving pursuant to Section 14 hereof or which have otherwise accrued but not been paid as of the date of such payment) shall terminate; (yy) any remaining insurance proceeds (other than proceeds of policies maintained by Lessor for its own account) shall be promptly paid over to Lessee; subject to the rights of any Insured Party under the Operative Agreements and (zz) Lessor shall subject to the rights of insurers and other Insured Parties seek to cause title to such Airframe, Engines and Propellers to be conveyed to Lessee or its designee, as-is, where-is, without recourse or warranty, express or implied, except for a warranty from Lessor against Lessor's Liens, and shall exercise such rights as it has to cause the release of the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution)Mortgage.
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.
Appears in 2 contracts
Samples: Purchase Agreement (Atlantic Coast Airlines Inc), Purchase Agreement (Atlantic Coast Airlines Inc)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or Aircraft during the AirframeTerm, any Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and in any event within 15 seven (7) days of after such occurrence occurrence) give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following "Casualty Termination Date" (which is defined as the earlier of of: (x) the 90th day following the occurrence of such Event of Loss date on which insurance proceeds are paid, or (y) the third Business Day following date which is the receipt of the insurance proceeds in respect of first Rent Payment Date occurring not less than 60 days after such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)Loss), the Borrower Lessee shall pay or cause to be paid to the Indenture Trustee Lessor an amount equal to the aggregate amount sum of outstanding principal(i) the Stipulated Loss Value of such Aircraft as of the Casualty Termination Date, plus (but without Make-Whole Amountii) if not previously paid by Lessee, if any), interest all other Rent due and other amounts then due payable on or in respect of the Loan Certificates, or
2prior to such Casualty Termination Date. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of Notwithstanding such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower Loss, Lessee's obligation to pay Basic Rent hereunder up to such Casualty Termination Date shall cause continue, such Basic Rate to be payable on the due date therefor. Upon payment in full of the Stipulated Loss Value for the Aircraft and other Rent payable as provided in the immediately preceding paragraph, (xx) this Lease (except for Supplemental Rent obligations surviving pursuant to Section 14 hereof or which have otherwise accrued but not been paid as of the date of such payment) shall terminate; (yy) any remaining insurance proceeds (other than proceeds of policies maintained by Lessor for its own account) shall be promptly paid over to Lessee; subject to the rights of any Insured Party under the Operative Agreements and (zz) Lessor shall subject to the rights of insurers and other Insured Parties seek to cause title to such Airframe, Engines and Propellers to be conveyed to Lessee or its designee, as- is, where-is, without recourse or warranty, express or implied, except for a warranty from Lessor against Lessor's Liens, and shall exercise such rights as it has to cause the release of the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution)Mortgage.
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and in any event event, within 15 fifteen (15) days of after such occurrence occurrence) give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss, and and, within sixty (60) days after such occurrenceEvent of Loss, Lessee shall give the Indenture Trustee Lessor written notice of its election to perform one of the following options (it being understood agreed that the failure to give if Lessee shall not have given such notice of election within such period, Lessee shall be deemed to be an election of have elected the option set forth in paragraph CLAUSE (1l) below.). Lessee may elect either to:
1. On or before (i) make the Business Day next following payments specified in this CLAUSE (i), in which event not later than the earlier earliest of (x) the 90th Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, (y) the tenth (10th) day (or, if such day is not a Business Day, the next succeeding Business Day) after receipt of insurance proceeds in respect of such Event of Loss; PROVIDED that in no event shall payment be required under this CLAUSE (i)(y) prior to the sixtieth (60th) day following the occurrence of such Event of Loss or if Lessee exercises the option to substitute provided in CLAUSE (yii) below (except as provided in the third proviso contained in said CLAUSE (ii)) or (z) an earlier Business Day following irrevocably specified fifteen (15) days in advance by notice from Lessee to Lessor (the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)"LOSS PAYMENT DATE"), the Borrower Lessee shall pay or cause to be paid to Lessor in funds of the Indenture Trustee type specified in SECTION 3(e) hereof, an amount equal to the aggregate amount Termination Value of outstanding principal, the Aircraft corresponding to the Termination Value Date occurring on or immediately following the Loss Payment Date (the "DETERMINATION DATE") together with Basic Rent due prior to but without Make-Whole Amount, if any), interest not on the Determination Date and all other amounts that then may be due on or hereunder including, without limitation, all Supplemental Rent; PROVIDED that in respect any instance in which the applicable Loss Payment Date shall occur after the final day of the Loan CertificatesTerm, the Determination Date shall be the last Termination Value Date in the Term; or
2. provided (ii) so long as no Special Default or Event of Default shall have has occurred and be is continuing, substitute an aircraft or an airframe or an airframe and one or more engines, as the case may be; PROVIDED that, if Lessee does not later than perform its obligation to effect such substitution in accordance with this SECTION 10(a), during the 90th period of time provided herein, then Lessee shall pay or cause to be paid to Lessor, on the Business Day next succeeding the one hundred twentieth (120th) day following the occurrence of such Event of Loss the amount specified in CLAUSE (or i) above. At such time as Lessor shall have received the next succeeding Business day if amounts specified in CLAUSE (i) above and all other amounts due under the 90th day is not a Business DayOperative Documents, (1) the Borrower obligation of Lessee to pay the installments of Basic Rent shall cease to accrue, (2) this Lease shall terminate, (3) Lessor will transfer or cause to be transferred, at the sole cost and expense of Lessee, to or at the direction of Lessee, in accordance with the provisions of SECTION 9(c) hereof, all of Lessor's right, title and interest in and to the Airframe and any Engines subject to such Event of Loss, as well as any Engines not subject to such Event of Loss, and furnish to or at the Lien direction of Lessee a bill of sale to transfer "as is, where is, with all faults" all ox Xxssor's right, title and interest therein without recourse, representation or warranty (except as to the absence of Lessor Liens), evidencing such transfer and (4) Lessee will be subrogated to all claims of Lessor, if any, against third parties, for damage to or loss of the Trust Indenture pursuant Airframe and any Engines which were subject to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (to the extent of the same manufacturer then insured value of the Aircraft. In the event Lessee shall elect to substitute an equivalent aircraft (or improved model an airframe or an airframe and one or more engines, as the Engine case may be) pursuant to CLAUSE (ii) above (I) Lessee shall, at its sole expense, not later than the Business Day next succeeding the one hundred twentieth (120th) day following the occurrence of such Event of Loss, (A) convey or cause to be conveyed to Lessor, and suitable for installation to be leased by Lessee hereunder, an aircraft (or an airframe or an airframe and use on the Airframe and compatible one or more engines which, together with the other Engine mortgaged hereunder), in each case owned by Engines constituting a part of the Borrower Aircraft but not installed thereon at the time of such Event of Loss constitute the Aircraft) free and clear of all Liens (other than Permitted Liens) that is the same model as the Airframe to be replaced, or an improved model and having at least the a value, utility and remaining useful life (as evidenced by an appraisal, in form and being in as good an operating condition as substance reasonably satisfactory to Lessor, prepared
by a qualified independent aircraft appraiser selected by Lessee and reasonably satisfactory to Lessor at Lessee's expense) at least equal to the Airframe and corresponding Engine, if any, Aircraft subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such the Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make Lease and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before B) prior to or at the time of any such substitution).
, Lessee, at its own expense, will (b1) If furnish Lessor with a bill of sale, in form and substance reasonably satisfactory to Lexxxx, and a favorable legal opinion of applicable aviation law counsel as to the Borrower elects title of Lessor to replace the Aircraft, the Airframe, such Aircraft (or the Airframe and and/or one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2Engines), the Borrower will:
(A2) cause a Trust Indenture Lease Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and Lessee above to be filed for recording pursuant to the Federal Aviation ActTransportation Code, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to Airframe may then be registeredregistered as permitted by SECTION 7 hereof, and (B3) cause a financing statement or other requisite documents of a similar nature statements with respect to such substituted property to be filed pursuant to the Uniform Commercial Code in such place or places as are reasonably deemed necessary in order by Lessor to perfect the security interests created by this Trust Indenture its interest therein and any Trust Supplement in such Replacement Airframe and any Replacement Engineherein, and (C4) register or consent to the registration furnish Lessor with such evidence of compliance with the International Registry insurance provisions of the contract SECTION 11 with respect to such substituted property as Lessor may reasonably request, and (5) furnish Lessor with an opinion of sale counsel from counsel chosen by Lessee and reasonably acceptable to Borrower Lessor, which is in form and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred substance satisfactory to above;
2. furnish a certificate of its independent insurance broker Lessor to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower Lessor will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §Section 1110 of the U.S. Bankruptcy Code with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft substitute aircraft; PROVIDED that such opinion need not be delivered if immediately prior to such replacement the applicable Event benefits of Loss, the Replacement Property has been duly subjected to the Lien Section 1110 of the Trust Indenture on Bankruptcy Code were not, solely by reason of a first priority change in law or court interpretation thereof, available to Lessor and (subject II) Lessor will simultaneously transfer to Permitted LiensLessee, in accordance with the provisions of SECTION 9(c) hereof, all of Lessor's right, title and perfected basis (orinterest, if the Aircraft is not then subject any, in and to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, as the case may be, with respect to which such Event of Loss occurred, (B) Lessee to be subrogated to all claims of Lessor, if any, against third parties for damage to or loss of the Airframe and any Engine which were subject to such Event of Loss to the extent of the then insured value of the Aircraft. For all purposes hereofhereof and of the other Operative Documents, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture leased hereunder and shall be deemed an “"Aircraft,” “", "Airframe” " and “"Engine,” ", as the case may be, as defined hereinin ANNEX A. No Event of Loss with respect to the Airframe or the Airframe and the Engines or engines then installed thereon for which substitution has been elected pursuant to this SECTION 10(a)(ii) hereof shall result in any suspension or reduction in Basic Rent.
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an any Event of Loss with respect to the Airframe or the Airframeand/or Aircraft, Lessee shall notify Lessor of any Engines and/or engines then installed thereon, the Borrower shall forthwith but in any event such Event of Loss within 15 five (5) days of such occurrence give each Holder and the Indenture Trustee written notice date thereof. On the date that is the earlier of (i) the sixtieth day following such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (xii) the 90th day following the occurrence of such Event of Loss or (y) the third second Business Day following the receipt of the applicable insurance proceeds in with respect of to such Event of Loss (but in Loss, Lessee shall pay to Lessor any event not earlier than Rent then due, payable or outstanding, plus the Casualty Value of the Aircraft determined as of the Basic Rent Date immediately following the date of Borrowersuch notice, together with interest at the Late Payment Rate for the period (if any) from the Basic Rent Date following the date of such notice through the date of payment. Upon making such payment and all Rent due and owing, Lessee’s election obligation to make pay further Basic Rent for the Aircraft subsequent to such payment shall cease, but Lessee’s obligation to pay Supplemental Rent as well as any other amounts due under this paragraph (1)), the Borrower shall pay or cause to be paid to the Indenture Trustee an amount equal to the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding EngineLease, if any, subject for the Aircraft shall remain unchanged. Except in the case of loss, permanent disappearance, destruction or Return to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to payManufacturer, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine unless possession thereof is required to be duly executed by the Borrower and filed for recording pursuant delivered to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary third party insurance carrier in order to perfect settle an insurance claim, Lessor shall be entitled to recover possession of the security interests created Aircraft and Lessor shall be entitled to any salvage value in excess of the Casualty Value paid to Lessor. In the event of a Return to Manufacturer, Lessor agrees that Lessee shall receive and retain all amounts payable to Lessor by this Trust Indenture the Manufacturer up to the amount, if any, of the Casualty Value actually paid by Lessee hereunder, but any excess shall be retained by Lessor. With respect to a Requisition of Use, Lessor agrees that Lessee shall receive and retain all amounts paid by any governmental authority up to the Casualty Value actually paid by Lessee hereunder, and any Trust Supplement in such Replacement Airframe and any Replacement Engineexcess shall be paid over to, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2retained by, Lessor. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which Lessor shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe under no duty to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating Lessee to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) pursue any claim against any Person in connection with respect to any Replacement Engine: (i) a description of the Engine suffering the an Event of Loss, which shall be identified by manufacturerbut Lessee may at its own cost and expense and with Lessor’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially prior written consent pursue the same on behalf of Lessor in such manner as the Aircraft Warranties, may be reasonably acceptable to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effectLessor.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.
Appears in 1 contract
Samples: Aircraft Lease (Copart Inc)
Event of Loss with Respect to the Aircraft. (ai) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and, in any event event, within 15 three (3) days of after such occurrence occurrence) give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss, and within . By the earlier of (y) sixty (60) days after such occurrencefollowing the Event of Loss Date or (z) the date on which the applicable insurance proceeds are received by the loss payee, give Lessee shall pay or cause to be paid to Lessor in immediately available funds the Indenture Trustee written notice Stipulated Loss Value of the Aircraft together with all other amounts then due and owing by Lessee hereunder.
(ii) Until the date on which the Stipulated Loss Value and the other amounts referred to in clause (b)(i) above are paid in full, Lessee shall be obligated to pay all Basic Rent as scheduled and shall continue to perform all of its election other obligations under the Operative Documents, except to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following extent rendered impossible by the occurrence of such Event of Loss or rendered, in the opinion of Lessor, unnecessary. If the Stipulated Loss Value referred to in clause (yb)(i) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier above is paid on a date other than the date of Borrower’s election to make payment under this paragraph (1))a Basic Rent Date, the Borrower Lessor shall pay refund or cause to be refunded to Lessee any paid to but unaccrued Basic Rent. Upon receipt of the Indenture Trustee an amount equal to the aggregate full amount of outstanding principal, the Stipulated Loss Value and the other amounts referred to in clause (but without Make-Whole Amount, if anyb)(i) above by Lessor pursuant to this Section 13(b), interest and if Lessee has paid all other amounts then due on and payable by Lessee under this Agreement and [Amended and Restated Lease Agreement] the other Operative Documents, then (x) Lessor shall, upon the joint written request of Lessee and each insurer or in respect their appointed representatives which contributed to the payment of the Loan CertificatesStipulated Loss Value, or
2. provided no Special Default transfer to the Person designated in such request all of Lessor's right, title and interest in the Aircraft without recourse or Event warranty (except as to absence of Default shall have occurred Lessor Liens, Liens existing prior to Delivery of the Aircraft to Lessee and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business DayLiens granted by Lessor to Lessor's lenders) the Borrower shall cause to be and subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements disclaimer set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee5(a), with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4y) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and Lessee shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined hereinrelieved of its obligations under Section 7.
Appears in 1 contract
Samples: Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Sublessee shall forthwith but (and in any event event, within 15 five (5) days of after such occurrence occurrence) give each Holder Sublessor and the Indenture Trustee Head Lessor written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following Not later than the earlier of (x) the Business Day next succeeding the 90th day following the occurrence of such Event of Loss or (y) the third an earlier Business Day following irrevocably specified fifteen (15) days in advance by notice from Sublessee to Sublessor and the receipt of Indenture Trustee (the insurance proceeds in respect of such Event of “Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)Payment Date”), the Borrower Sublessee shall pay or cause to be paid to Sublessor (or its designee) in funds of the Indenture Trustee type specified in Section 3(d) hereof, an amount equal to the aggregate Stipulated Loss Value corresponding to the Stipulated Loss Value Date occurring on or immediately following the Loss Payment Date; provided, however, that if a Sublease Period Date shall occur on or prior to the Loss Payment Date with respect to which Stipulated Loss Value is determined, Sublessee shall pay on such Sublease Period Date an amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then equal to the Basic Rent that would have been due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of prior to such Sublease Period Date if such Event of Loss had not occurred. At such time as Sublessor shall have received the amounts specified in the preceding sentence, together with all other amounts that then may be due hereunder (or including, without limitation, all Basic Rent due before the next succeeding Business day if Stipulated Loss Value Date by reference to which the 90th day Stipulated Loss Value is not a Business Daycalculated for the Loss Payment Date and all Supplemental Rent then due) (1) the Borrower obligation of Sublessee to pay the installments of Basic Rent, Supplemental Rent, Stipulated Loss Value or any other amount shall cause cease to be subject to accrue (but without affecting the provisions of Section 29(b) or 29(c) hereof), (2) except for the provisions of Sections 29(b) and 29(c) of this Sublease (which shall survive), this Sublease shall terminate, (3) Sublessor will, if the Lien of the Trust Indenture pursuant is still in effect, exercise such rights as it may have to Section 5.01(c) an airframe cause Head Lessor to comply with the terms of the Trust Indenture relating to the release of the Aircraft from the Lien of the Trust Indenture and an engine will transfer, and exercise such rights as it may have to cause Head Lessor to transfer, to or at the direction of Sublessee, without recourse or warranty (except, with respect to Head Lessor, as to the absence of Head Lessor Liens, including for each Engine suffering this purpose Liens which would be Head Lessor Liens but for the proviso in the definition of Head Lessor Liens, and, with respect to Sublessor, as to the absence of Sublessor Liens, including for this purpose Liens which would be Sublessor Liens but for the proviso in the definition of Sublessor Liens), all of Head Lessor’s and Sublessor’s, as the case may be, right, title and interest in and to the Airframe and any Engines subject to such Event of Loss if Loss, as well as any Engines not subject to such Event of Loss, and will exercise such rights as it may have to cause the Owner to furnish to or at the direction of Sublessee a xxxx of sale in form and substance reasonably satisfactory to Sublessee, evidencing such transfer, and (4) Sublessee will be subrogated to all claims of the same manufacturer of an equivalent or improved model as the Engine Sublessor and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding EngineHead Lessor, if any, against third parties, for damage to or loss of the Airframe and any Engines which were subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with to the terms extent of this Trust Indenture; provided that the then insured value of the Aircraft. If at any aircraft or airframe so substituted hereunder time Sublessor shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects permitted to replace the Aircraft, the Airframe, or substitute an airframe for the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within 10 of the time period providedHead Lease, Sublessor shall have the Borrower shall be deemed to have elected to payright, and shall payin its sole discretion, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the substitute an airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee Airframe under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2)Sublease.
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (a) 10.2.1 Upon the occurrence of an Event of Loss with respect to the Airframe or the AirframeAirframe and Engines, any Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and, in any event event, within 15 three days of after such occurrence occurrence) give each Holder Lessor and the Indenture Trustee Security Agent written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following By the earlier of (x1) the 90th day following 60 days after the occurrence of such Event of Loss or (y2) the third Business Day following date on which the receipt of the applicable insurance or requisition proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1))are paid, the Borrower Lessee shall pay or cause to be paid to Lessor in immediately available funds the Indenture Trustee an amount equal Stipulated Loss Value (but only to the aggregate extent the full amount of outstanding principalthe Stipulated Loss Value was not obtained and applied by Lessor pursuant to Section 11.2.1 or received by Lessor from the relevant Government Entity in connection with any requisition).
10.2.2 Until the date on which the Stipulated Loss Value is paid in full, Lessee shall be obligated to pay all Basic Rent as scheduled and shall continue to perform all of its other obligations hereunder and under the other Operative Documents, except to the extent rendered impossible by the occurrence of Frontier Lease Agreement (MSN 28662) Execution Copy -45- such Event of Loss or rendered, in the opinion of Lessor, unnecessary. If the Stipulated Loss Value is paid on a date other than a Rent Payment Date, Lessor shall refund or cause to be refunded to Lessee any paid but without Make-Whole Amountunaccrued Basic Rent. Upon receipt of the full amount of the Stipulated Loss Value by Lessor pursuant to this Section 10.2, and if any), interest and Lessee has paid all other amounts then due on or in respect and payable by Lessee under this Lease Agreement and the other Operative Documents, then (1) Lessor shall, upon the joint written request of Lessee and each insurer which contributed to the payment of the Loan CertificatesStipulated Loss Value, or
2. provided no Special Default transfer to the Person designated in such request title to the Aircraft (including the Engines and all Parts) without recourse or Event warranty (except as to absence of Default shall have occurred all rights of all Lessor Liens) and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien disclaimer set forth in Section 5.1, (2) Lessor shall return to Lessee the Security Deposit or Letter of the Trust Indenture pursuant to Section 5.01(c) an airframe Credit, as applicable, and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent insurance, requisition, condemnation or improved model as the Engine similar proceeds received after and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject related to such Event of Loss in excess of the Stipulated Loss Value and all Reserves previously paid by Lessee in respect of the Aircraft (in each case without taking into account hourscase, cycles and maintenance schedule) assuming that such Aircraft had been maintained to the extent not previously applied in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1hereof) and (43) above have been duly authorized Lessee shall be relieved of its obligations under this Lease Agreement and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property except those that are expressly stated to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States survive termination hereof and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined hereinthereof.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Frontier Airlines Inc /Co/)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Owner shall forthwith but (and in any event event, within 15 fifteen (15) days of after such occurrence occurrence) give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty forty-five (6045) days after such occurrence, Event of Loss the Owner shall give the Indenture Trustee written notice of its election to perform one of the following options (it being understood agreed that if the failure to give Owner shall not have given such notice of election within such period, the Owner shall be deemed to be an election of have elected the option set forth in paragraph clause (1i) below.). The Owner may elect either to:
1. On or before (i) redeem the Business Day next following Secured Certificates in accordance with Section 2.10 hereof not later than the earlier of (x) the 90th Business Day next succeeding the 120th day following the occurrence of such Event of Loss or (y) the third an earlier Business Day following irrevocably specified fifteen (15) days in advance by notice from the receipt Owner to the Indenture Trustee; or
(ii) substitute an aircraft or an airframe or an airframe and one or more engines, as the case may be; provided that, if the Owner does not perform its obligation to effect such substitution in accordance with this Section 7.06(a) during the period of time provided herein, then the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower Owner shall pay or cause to be paid to the Indenture Trustee an amount equal to on the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of Business Day next succeeding the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th 120th day following the occurrence of such Event of Loss the amount specified in clause (i) above. In the event the Owner shall elect to substitute an aircraft (or an airframe or an airframe and one or more engines, as the case may be), the Owner shall at its sole expense, not later than the Business Day next succeeding Business the 120th day if following the 90th day is not a Business Dayoccurrence of such Event of Loss, (x) the Borrower shall cause to be subject subjected to the Lien of this Trust Indenture, in replacement of the Trust Indenture pursuant Airframe with respect to Section 5.01(c) an airframe and an engine for each Engine suffering such which the Event of Loss occurred, a Replacement Airframe and, if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use shall have been installed on the Airframe when it suffered an Event of Loss, a Replacement Engine therefor, such Replacement Airframe and compatible with the other Engine mortgaged hereunder)Replacement Engines, in each case owned by the Borrower if any, to be free and clear of all Liens (other than Permitted Liens) and having at least the a value, utility and remaining useful life and being in as good an operating condition (without regard to hours or cycles) at least equal to the Airframe or Engine, as the Airframe and corresponding Engine, if anycase may be, subject to such Event of Loss (in each case without taking into account hours, cycles assuming no Event of Loss had occurred and maintenance schedule) assuming that such the Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder the Replacement Airframe and the Replacement Engines, if any, shall be of the same or improved make and model as initially mortgaged hereunder the Airframe or Engine, as the case may be, that are replaced and shall be in a passenger configuration (or will be brought into such configuration by Borrower before y) prior to or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the AirframeOwner (or any Lessee), or at its own expense, will (1) furnish the Indenture Trustee a copy of the original xxxx of sale respecting such Replacement Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period providedReplacement Engines, the Borrower shall be deemed to have elected to payif any, and shall pay, appropriate instruments assigning to the Indenture Trustee within three Business Days the amount determined in accordance benefits, if any, of all manufacturer's and vendor's warranties generally available and permitted to be assigned by the Owner with Section 5.01(a)(1).
respect to such Replacement Airframe and Replacement Engines, if any, (c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A2) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower Owner and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to Replacement Airframe and Replacement Engines, if any, may then be registeredregistered as permitted by Section 8(f) of the Participation Agreement, and (B3) cause a financing statement or other requisite documents of a similar nature statements with respect to such Replacement Airframe and Replacement Engines, if any, to be filed pursuant to the Uniform Commercial Code in such place or places as are deemed necessary in order or desirable by counsel for the Indenture Trustee to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement EngineTrustee's interest therein, and (C4) register or consent to furnish the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate with such evidence of its independent insurance broker to the effect that compliance with the insurance provisions of Article VI Section 7.04 with respect to such Replacement Airframe or and Replacement Engine have been complied with;
3. Engines, if any, as the Indenture Trustee's counsel may reasonably request, (5) furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, an opinion of in-house counsel to the extent then in effect and (B) Replacement Engine substantially the same as the Engine WarrantiesOwner, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s other counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect stating that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted LiensEngines, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Lossif any, the Replacement Property has or have been duly validly subjected to the Lien of the this Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced)Indenture, the Trust Indenture Supplement instruments subjecting such Replacement Property Airframe and Replacement Engines, if any, to the Lien of this Trust Indenture has Indenture, have been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if to the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all registration of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engineand Replacement Engines, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunderif any, and the Indenture Trustee will execute such documents no further action, filing or recording of any document is necessary or advisable in order to establish and provide its consent to the International Registry as Borrower shall request to release from perfect the Lien of this Trust Indenture on such Replacement Airframe and Replacement Engines, if any (B) a certificate signed by a duly authorized officer of the Aircraft Owner stating the following: (i) a description of the replaced Airframe and Engines, if any, which shall be identified by manufacturer, model, FAA registration number (or other applicable registration information) and manufacturer's serial number; (ii) a description of the Replacement Airframe and Replacement Engines, if any, to be received (including the manufacturer, model, FAA registration number (or other applicable registration information) and manufacturer's serial number) as consideration for the replaced Airframe and Engines, if any; (iii) that the Replacement Airframe and Replacement Engines, if any, is or are of the same or an improved model as the Airframe and one or more Engines, if any, requested to be released from this Trust Indenture; (iv) the value, utility and remaining useful life (without regard to hours or cycles) of the Replacement Airframe and Replacement Engines, if any, as of the date of such certificate (which in the judgment of the Owner shall be not less than the value, utility and remaining useful life (without regard to hours or cycles) of the Airframe and Engines, if any, requested to be released (assuming no Event of Loss and that such Airframe and Engines, if any, was or were in the condition and repair required to be maintained under this Trust Indenture)); and (v) that no Event of Default or Default has occurred which has not been remedied or waived, and that the Owner will not be in default, by the making and granting of the request for release and the addition of a Replacement Airframe and Replacement Engines, if any, in the performance of any of the terms and covenants of the Owner, and (C) a certificate from either an aircraft engineer (who may be an employee of the Owner) or a firm of independent aircraft appraisers selected by the Owner confirming the accuracy of the information set forth in sub-clause (iv) of the immediately preceding clause (5)(B) of this Section 7.06(a), and (6) furnish the Indenture Trustee with an opinion of counsel (which shall be Cadwalader, Xxxxxxxxxx & Xxxx and, if not, other counsel chosen by the Owner and reasonably acceptable to the Indenture Trustee) reasonably satisfactory to the Indenture Trustee to the effect that the Indenture Trustee will be entitled to the benefits of Section 1110 of the U.S. Bankruptcy Code with respect to which the Replacement Airframe, provided that such Event opinion need not be delivered to the extent that immediately prior to such substitution the benefits of Loss occurredSection 1110 of the U.S. Bankruptcy Code were not, solely by reason of a change in law or governmental interpretation thereof, available to the Indenture Trustee. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “"Aircraft,” “", "Airframe” " and “"Engine,” ", as the case may be, as defined herein. Upon the Owner having provided a Replacement Airframe and Replacement Engines, if any, as provided for in this Section 7.06(a), (x) the Lien of this Trust Indenture shall continue with respect to such Replacement Airframe and Replacement Engines, if any, as though no Event of Loss had occurred; the Indenture Trustee shall, at the cost and expense of the Owner, release from the Lien of this Trust Indenture the replaced Airframe and Engines, if any, with respect to which such Event of Loss occurred, by executing and delivering to the Owner such documents and instruments, prepared at the Owner's expense, as the Owner may reasonably request to evidence such release; and (y) the Indenture Trustee shall assign to the Owner all claims it may have against any other Person arising from the Event of Loss and the Owner shall receive all insurance proceeds and proceeds from any award in respect of condemnation, confiscation, seizure or requisition, including any investment interest thereon, to the extent not previously applied to the purchase price of the Replacement Airframe and Replacement Engines, if any, as provided in Sections 7.04(b) and 7.06(c)(i) hereof.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Northwest Airlines Inc /Mn)
Event of Loss with Respect to the Aircraft. (1) By the earlier of (a) Upon 90 days after the occurrence of an Event of Loss with respect to the Airframe Aircraft or (b) the Airframe, any Engines and/or engines then installed thereon, date on which the Borrower shall forthwith but applicable insurance proceeds are paid in any event within 15 days respect of such occurrence give each Holder and the Indenture Trustee written notice of such that Event of Loss, Lessee will pay or cause to be paid to Lessor the Agreed Insurance Value, unless (i) an amount equal to the Agreed Insurance Value was prior to such date actually received by Lessor from the insurers and within sixty Lessor was able, under applicable Law, to apply such amount against Lessee’s obligation to pay the Agreed Insurance Value, or (60ii) days after such occurrenceprior to either of the dates referred to in (a) or (b) above, give the Indenture Trustee written notice circumstances giving rise to the Event of Loss have ceased to exist.
(2) Until the date on which the Agreed Insurance Value is paid irrevocably and unconditionally in full, Lessee will continue to pay all Rent—Periodic as scheduled and will continue to perform all of its election other obligations under the Operative Documents, except to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following extent rendered impossible by the occurrence of such Event of Loss or (y) rendered, in the third Business Day following opinion of Lessor, unnecessary. If the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier Agreed Insurance Value is paid irrevocably and unconditionally on a date other than the date of Borrower’s election to make payment under this paragraph (1))a Rent Payment Date, the Borrower shall pay Lessor will refund or cause to be refunded to Lessee any paid but unaccrued Rent—Periodic.
(3) Upon irrevocable receipt by Lessor of the full amount of the Agreed Insurance Value pursuant to this Section 10.3, and provided that all Secured Obligations then due and payable have been paid or performed, then (a) the Lease Term will terminate, (b) Lessor will, upon the joint written request of Lessee and each relevant Insurance underwriter, convey or cause to be conveyed to the Indenture Trustee Person designated in such request title to the Aircraft (including the Engines and all Parts) without recourse or warranty (except as to absence of all rights of Owner and Lessor and all Lessor Liens) and subject to the disclaimer set forth in Section 4 of Part II of Schedule 1 to the Aircraft Lease Agreement, and (c) Lessor shall return any Letter of Credit, and/or pay to Lessee, by way of refund of Rent—Periodic, an amount equal to the aggregate amount End of outstanding principalLease Rent Rebate, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder)applicable, in each case owned by the Borrower free and clear within 10 Business Days of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be receipt of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority Agreed Insurance Value (subject to Permitted Liens) the Secured Obligations then due and perfected basis (or, if the Aircraft is not then subject to U.S. registry, payable having the same priority and perfection required to be maintained under the Operative Documents being satisfied in respect of the property being so replacedfull), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (a) 10.2.1 Upon the occurrence of an Event of Loss with respect to the Airframe or the AirframeAirframe and Engines, any Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and, in any event event, within 15 three days of after such occurrence occurrence) give each Holder Lessor and the Indenture Trustee Security Agent written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following By the earlier of (x1) the 90th day following 60 days after the occurrence of such Event of Loss or (y2) the third Business Day following date on which the receipt of the applicable insurance or requisition proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1))are paid, the Borrower Lessee shall pay or cause to be paid to Lessor in immediately available funds the Indenture Trustee an amount equal Stipulated Loss Value (but only to the aggregate extent the full amount of outstanding principalthe Stipulated Loss Value was not obtained and applied by Lessor pursuant to Section 11.2.1 or received by Lessor from the relevant Government Entity in connection with any requisition).
10.2.2 Until the date on which the Stipulated Loss Value is paid in full, Lessee shall be obligated to pay all Basic Rent as scheduled and shall continue to perform all of its other obligations hereunder and under the other Operative Documents, except to the extent rendered impossible by the occurrence of Frontier Lease Agreement (MSN 28760) Execution Copy -45- such Event of Loss or rendered, in the opinion of Lessor, unnecessary. If the Stipulated Loss Value is paid on a date other than a Rent Payment Date, Lessor shall refund or cause to be refunded to Lessee any paid but without Make-Whole Amountunaccrued Basic Rent. Upon receipt of the full amount of the Stipulated Loss Value by Lessor pursuant to this Section 10.2, and if any), interest and Lessee has paid all other amounts then due on or in respect and payable by Lessee under this Lease Agreement and the other Operative Documents, then (1) Lessor shall, upon the joint written request of Lessee and each insurer which contributed to the payment of the Loan CertificatesStipulated Loss Value, or
2. provided no Special Default transfer to the Person designated in such request title to the Aircraft (including the Engines and all Parts) without recourse or Event warranty (except as to absence of Default shall have occurred all rights of all Lessor Liens) and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien disclaimer set forth in Section 5.1, (2) Lessor shall return to Lessee the Security Deposit or Letter of the Trust Indenture pursuant to Section 5.01(c) an airframe Credit, as applicable, and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent insurance, requisition, condemnation or improved model as the Engine similar proceeds received after and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject related to such Event of Loss in excess of the Stipulated Loss Value and all Reserves previously paid by Lessee in respect of the Aircraft (in each case without taking into account hourscase, cycles and maintenance schedule) assuming that such Aircraft had been maintained to the extent not previously applied in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1hereof) and (43) above have been duly authorized Lessee shall be relieved of its obligations under this Lease Agreement and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property except those that are expressly stated to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States survive termination hereof and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined hereinthereof.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Frontier Airlines Inc /Co/)
Event of Loss with Respect to the Aircraft. (ai) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and, in any event event, within 15 three (3) days of after such occurrence occurrence) give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss, and within . By the earlier of (y) sixty (60) days after such occurrencefollowing the Event of Loss Date or (z) the date on which the applicable insurance proceeds are received by the loss payee, give Lessee shall pay or cause to be paid to Lessor in immediately available funds the Indenture Trustee written notice Stipulated Loss Value of the Aircraft together with all other amounts then due and owing by Lessee hereunder.
(ii) Until the date on which the Stipulated Loss Value and the other amounts referred to in clause (b)(i) above are paid in full, Lessee shall be obligated to pay all Basic Rent or Renewal Rent, as applicable, as scheduled and shall continue to perform all of its election other obligations under the Operative Documents, except to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following extent rendered impossible by the occurrence of such Event of Loss or rendered, in the opinion of Lessor, unnecessary. If the Stipulated Loss Value referred to in clause (yb)(i) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier above is paid on a date other than the date of Borrower’s election to make payment under this paragraph (1))a Basic Rent Date or Renewal Rent Date, the Borrower Lessor shall pay refund or cause to be refunded to Lessee any paid to but unaccrued Basic Rent or Renewal Rent, as applicable. Upon receipt of the Indenture Trustee an amount equal to the aggregate full amount of outstanding principal, the Stipulated Loss Value and the other amounts referred to in clause (but without Make-Whole Amount, if anyb)(i) above by Lessor pursuant to this Section 13(b), interest and if Lessee has paid all other amounts then due on and payable by Lessee under this Agreement and the other Operative Documents, then (x) Lessor shall, upon the joint written request of Lessee and each insurer or in respect their appointed representatives which contributed to the payment of the Loan CertificatesStipulated Loss Value, or
2. provided no Special Default transfer to the Person designated in such request all of Lessor's right, title and interest in the Aircraft without recourse or Event warranty (except as to absence of Default shall have occurred Lessor Liens) and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements disclaimer set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee5(a), with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4y) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and Lessee shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined hereinrelieved of its obligations under Section 7.
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and in any event event, within 15 fifteen (15) days of after such occurrence occurrence) give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss, and and, within sixty (60) days after such occurrenceEvent of Loss, Lessee shall give the Indenture Trustee Lessor written notice of its election to perform one of the following options (it being understood agreed that the failure to give if Lessee shall not have given such notice of election within such period, Lessee shall be deemed to be an election of have elected the option set forth in paragraph CLAUSE (1i) below.). Lessee may elect either to:
1. On or before (i) make the Business Day next following payments specified in this CLAUSE (i), in which event not later than the earlier earliest of (x) the 90th Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, (y) the tenth (10th) day (or, if such day is not a Business Day, the next succeeding Business Day) after receipt of insurance proceeds in respect of such Event of Loss; PROVIDED that in no event shall payment be required under this CLAUSE (i)(y) prior to the sixtieth (60th) day following the occurrence of such Event of Loss or if Lessee exercises the option to substitute provided in CLAUSE (yii) below (except as provided in the third proviso contained in said CLAUSE (ii)) or (z) an earlier Business Day following irrevocably specified fifteen (15) days in advance by notice from Lessee to Lessor (the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)"LOSS PAYMENT DATE"), the Borrower Lessee shall pay or cause to be paid to Lessor in funds of the Indenture Trustee type specified in SECTION 3(e) hereof, an amount equal to the aggregate amount Termination Value of outstanding principal, the Aircraft corresponding to the Termination Value Date occurring on or immediately following the Loss Payment Date (the "DETERMINATION DATE") together with Basic Rent due prior to but without Make-Whole Amount, if any), interest not on the Determination Date and all other amounts that then may be due on or hereunder including, without limitation, all Supplemental Rent; PROVIDED that in respect any instance in which the applicable Loss Payment Date shall occur after the final day of the Loan CertificatesTerm, the Determination Date shall be the last Termination Value Date in the Term; or
2. provided (ii) so long as no Special Default or Event of Default shall have has occurred and be is continuing, substitute an aircraft or an airframe or an airframe and one or more engines, as the case may be; PROVIDED that, if Lessee does not later than perform its obligation to effect such substitution in accordance with this SECTION 10(a), during the 90th period of time provided herein, then Lessee shall pay or cause to be paid to Lessor, on the Business Day next succeeding the one hundred twentieth (120th) day following the occurrence of such Event of Loss the amount specified in CLAUSE (or i) above. At such time as Lessor shall have received the next succeeding Business day if amounts specified in CLAUSE (i) above and all other amounts due under the 90th day is not a Business DayOperative Documents, (1) the Borrower obligation of Lessee to pay the installments of Basic Rent shall cease to accrue, (2) this Lease shall terminate, (3) Lessor will transfer or cause to be transferred, at the sole cost and expense of Lessee, to or at the direction of Lessee, in accordance with the provisions of SECTION 9(c) hereof, all of Lessor's right, title and interest in and to the Airframe and any Engines subject to such Event of Loss, as well as any Engines not subject to such Event of Loss, and furnish to or at the Lien direction of Lessee a bill of sale to transfer "as is, where is, with all faults" all of Xxxxor's right, title and interest therein without recourse, representation or warranty (except as to the absence of Lessor Liens), evidencing such transfer and (4) Lessee will be subrogated to all claims of Lessor, if any, against third parties, for damage to or loss of the Trust Indenture pursuant Airframe and any Engines which were subject to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (to the extent of the same manufacturer then insured value of the Aircraft. In the event Lessee shall elect to substitute an equivalent aircraft (or improved model an airframe or an airframe and one or more engines, as the Engine case may be) pursuant to CLAUSE (ii) above (I) Lessee shall, at its sole expense, not later than the Business Day next succeeding the one hundred twentieth (120th) day following the occurrence of such Event of Loss, (A) convey or cause to be conveyed to Lessor, and suitable for installation to be leased by Lessee hereunder, an aircraft (or an airframe or an airframe and use on the Airframe and compatible one or more engines which, together with the other Engine mortgaged hereunder), in each case owned by Engines constituting a part of the Borrower Aircraft but not installed thereon at the time of such Event of Loss constitute the Aircraft) free and clear of all Liens (other than Permitted Liens) that is the same model as the Airframe to be replaced, or an improved model and having at least the a value, utility and remaining useful life (as evidenced by an appraisal, in form and being in as good an operating condition as substance reasonably satisfactory to Lessor, prepared by a qualified independent aircraft appraiser selected by Lessee and reasonably satisfactory to Lessor at Lessee's expense) at least equal to the Airframe and corresponding Engine, if any, Aircraft subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such the Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make Lease and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before B) prior to or at the time of any such substitution).
, Lessee, at its own expense, will (b1) If furnish Lessor with a bill of sale, in form and substance reasonably satisfactory to Lessxx, and a favorable legal opinion of applicable aviation law counsel as to the Borrower elects title of Lessor to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number Aircraft (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and and/or one or more Engines), with respect (2) cause a Lease Supplement to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.duly
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an any Event of Loss with respect to the Airframe or the Airframeand/or Aircraft, Lessee shall notify Lessor of any Engines and/or engines then installed thereon, the Borrower shall forthwith but in any event such Event of Loss within 15 five (5) days of such occurrence give each Holder and the Indenture Trustee written notice date thereof. On the next Basic Rent Date following the date of such notice (or, if such Event of Loss occurs after the Last Basic Rent Date, within thirty (30) days after such notice), Lessee shall pay to Lessor any Rent then due, plus the Casualty Value of the Aircraft determined as of the Basic Rent Date immediately following the date of such notice, together with interest at the Late Payment Rate for the period (if any) from the Basic Rent Date following the date of such notice through the date of payment. Upon making such payment and all Rent due an owing, Lessee's obligation to pay further Basic Rent for the Aircraft subsequent to such payment shall cease, but Lessee's obligation to pay Supplemental Rent as well as any other amounts due under this Lease, if any, for the Aircraft shall remain unchanged. Except in the case of loss, permanent disappearance, destruction or Return to Manufacturer, and unless possession thereof is required to be delivered to a third party insurance carrier in order to settle an insurance claim, upon making such payment and all Rent due and owing, Lessee shall be entitled to recover possession of the Aircraft and Lessee shall be entitled to any salvage value in excess of the Casualty Value paid to Lessor. In the event of a Return to Manufacturer, Lessor agrees that Lessee shall receive and retain all amounts payable to Lessor by the Manufacturer up to the amount, if any, of the Casualty Value actually paid by Lessee hereunder, and that Lessee shall retain any excess. With respect to a Requisition of Use, Lessor agrees that Lessee shall receive and retain all amounts paid by any governmental authority up to the Casualty Value actually paid by Lessee hereunder, and any excess shall be paid over to, and retained by, Lessee. Lessor shall be under no duty to Lessee to pursue any claim against any Person in connection with an Event of Loss, but Lessee may at its own cost and within sixty (60) days after such occurrence, give the Indenture Trustee expense and with Lessor's prior written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower shall pay or cause to be paid to the Indenture Trustee an amount equal to the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of consent pursue the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect Lessor in such manner as may be reasonably acceptable to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2)Lessor.
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (ai) Upon Lessee will deliver to Lessor written notice of the occurrence of an any Event of Loss with respect to the Airframe or the Airframe, any Engines and/or engines then installed thereon, the Borrower shall forthwith but in any event Aircraft within 15 days of such occurrence give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty ten (6010) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1occurrence thereof. On or before the Business Day next Basic Rent Date following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than or, if the date Event of Borrower’s election to make payment under this paragraph Loss occurs after the Last Basic Rent Date, within thirty (1)30) days after the Event of Loss), the Borrower shall Lessee will pay or cause to be paid to the Indenture Trustee Lessor an amount equal to the aggregate amount sum of outstanding principal(A) all Rent then due hereunder, plus (B) the Casualty Value of the Aircraft determined as of such next Basic Rent Date or the Last Basic Rent Date, as applicable. Upon Lessor’s receipt of such amounts, Lessee’s obligation to pay further Basic Rent for the Aircraft will cease, but without Make-Whole Amount, if any), interest Lessee’s obligation to pay Supplemental Rent and any other amounts then due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engineunder this Lease, if any, subject will remain in full force and effect, Except in the case of total destruction, permanent disappearance, Requisition of Use, or Return to such Event of Loss (in each case without taking into account hoursManufacturer, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or Lessor will be brought into such configuration by Borrower before or at the time entitled to possession of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed unless possession by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe an insurance carrier is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary required in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2settle an insurance claim. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower Lessor will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that under no Special Default or Event of Default has occurred and is continuing, or
(b) duty to Lessee to pursue any claim against any Person in connection with respect to any Replacement Engine: (i) a description of the Engine suffering the an Event of Loss, which shall but Lessee may at its sole cost and expense and with Lessor’s prior written consent pursue the same on behalf of Lessor in such manner as may be identified by manufacturer’s serial number; reasonably acceptable to Lessor.
(ii) a description Following payment to Lessor of the Replacement Engine (includingCasualty Value, in each case, the manufacturer’s name and serial number); (iii) that on the date Lessee will dispose of the Trust Indenture Supplement relating Aircraft as Lessor’s agent as soon as it is able for the best price obtainable Any such disposition will be on as “AS-IS, WHERE-IS” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY BY LESSOR (OTHER THAN AS TO LESSOR’S LIENS) of any kind whatsoever. Lessee may retain all amounts received from such disposition up to an amount equal to the Replacement Engine, sum of the Borrower Casualty Value actually paid by Lessee plus Lessee’s reasonable costs and expenses of disposition. Any excess will be paid over to, and retained by, Lessor. In the owner event of such Replacement Enginea Return to Manufacturer, free and clear of Lessee will be entitled to all Liens except Permitted Liens, that such Replacement Engine will on such date meet amounts payable to Lessor by the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning Manufacturer up to the Indenture Trustee as additional collateral under this Trust Indenture amount, if any, of the benefit of Manufacturer’s warranties with Casualty Value actually paid by Lessee to Lessor, and any excess will be retained by Lessor. With respect to such (A) Replacement Airframe substantially the same as the Aircraft Warrantiesa Requisition of Use, Lessee will be entitled to all amounts paid by any governmental authority up to the extent then in effect and (B) Replacement Engine substantially the same as the Engine WarrantiesCasualty Value actually paid by Lessee, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to excess will be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunderpaid over to, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Enginesretained by, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined hereinLessor.
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Engines and/or engines then installed thereon, the Borrower shall forthwith but in any event within 15 days of such occurrence give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower shall pay or cause to be paid to the Indenture Trustee an amount equal to the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, Airframe or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period providedor engines then installed thereon, the Borrower Lessee shall be deemed to have elected to pay, promptly (and shall pay, to the Indenture Trustee in any event within three five (5) Business Days in the amount determined case of an event described in accordance with Section 5.01(a)(1).
paragraphs (ci) Prior and (ii) of the definition of Event of Loss and within fifteen (15) days in any other case) give the Lessor and the Loan Trustee written notice of such Event of Loss (or cause such notice to or at the time of any substitution pursuant to Section 5.01(a)(2be given), which notice shall specify the Borrower will:
actions the Lessee is taking (A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine causing to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (Btaken) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe Event of Loss. It is expressly agreed that if any Basic Rent Payment Date occurs on or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer after such Event of Loss (and prior to the payment of the Borrower stating Note Value), the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which Lessee shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating pay to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will Lessor on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating amount equal to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free Basic Rent which would have become due and clear of all Liens except Permitted Liens, that such Replacement Engine will payable on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record accordance with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits terms hereof had no Event of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Loss so occurred. Following such an Event of Loss, the Replacement Property has been duly subjected Term shall end on the earlier of (i) the date the Lessee, the Lessor or the applicable Secured Party receives the Insurance Proceeds with respect to such Event of Loss and (ii) ninety (90) days after the occurrence of such Event of Loss, on which date the Lessee shall pay to the Lien of Lessor an amount equal to the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if then applicable Note Value for the Aircraft is not then subject as of such date of termination including (x) all accrued but unpaid Basic Rent and Supplemental Rent to U.S. registrysuch date of termination, having (y) an amount sufficient to discharge the same priority and perfection required to be maintained under the Operative Documents Lessor’s obligations in respect of the property being so replaced), Aircraft under Section 2.10 of the Trust Indenture Supplement subjecting such Replacement Property and (z) all other amounts then owing by the Lessor or the Lessee under the Financing Agreements relating to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been madeAircraft. Upon full compliance by the Borrower Lessee with the terms of this paragraph (a) the Lessor will (subject to insurer’s salvage rights, if any) transfer to, or upon the order of, the Lessee on an “as-is, where-is” basis without recourse or warranty, all of the terms of Section 5.01(c) applicable Lessor’s right, title and interest, if any, in and to any Replacement Airframe or Enginethe Aircraft by an appropriate instrument, the Airframe and any Engines suffering manufacturer’s or repairer’s warranties relating thereto and will take such Event of Loss shall cease to be an “Airframe” and “Engine” hereunderother action, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may beat Lessee’s cost, as defined hereinmay be necessary to effect such transfer.
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (1) By the earlier of (a) Upon 180 days after the occurrence of an Event of Loss with respect to the Airframe Aircraft or (b) the Airframedate on which the applicable insurance or requisition proceeds are paid, Lessee shall pay or cause to be paid to Lessor the Stipulated Loss Value after taking into account any Engines and/or engines then installed thereonamounts already paid against Lessee’s obligation to pay the Stipulated Loss Value, unless (i) an amount equal to the Borrower Stipulated Loss Value was actually received by Lessor from the insurers or, in the case of a requisition, from the relevant Government Entity and (ii) Lessor was able, under applicable Law, to apply such amount against Lessee’s obligation to pay the Stipulated Loss Value.
(2) Until the date on which the Stipulated Loss Value is paid in full, Lessee shall forthwith but in any event within 15 days of such occurrence give each Holder continue to pay all Rent—Periodic as scheduled and the Indenture Trustee written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice shall continue to perform all of its election other obligations under the Operative Documents, except to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following extent rendered impossible by the occurrence of such Event of Loss or (y) rendered, in the third Business Day following reasonable opinion of Lessor, unnecessary. If the receipt of the insurance proceeds Stipulated Loss Value is paid in respect of such Event of Loss (but full on a date other than a Rent Payment Date, Lessor shall, so long as all other Secured Obligations then due and owing have been paid in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1))full, the Borrower shall pay refund or cause to be refunded to Lessee any paid but unaccrued Rent—Periodic.
(3) Upon receipt by Lessor of the full amount of the Stipulated Loss Value pursuant to this Section 10.3, and if all Secured Obligations then due and owing have been paid or performed, then Lessor shall, (a) upon the joint written request of Lessee and each relevant insurance underwriter, convey or cause to be conveyed to the Indenture Trustee Person designated in such request title to the Aircraft (including the Engines and all Parts) without recourse or warranty (except as to absence of all rights of Owner and Lessor and all Lessor Liens) and subject to the disclaimer set forth in Section 4 of Part II of Schedule 3 and (b) return to Lessee (i) the Security Deposit or Letter of Credit, as applicable, and any Letter of Credit provided in lieu of paying Reserves in respect of life-limited Parts for each Engine and (ii) an amount equal to the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect notional account balance of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred Reserves and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior any insurance proceeds from the Insurances required under this Section 11 paid to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction Lessor in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry excess of the contract Stipulated Loss Value due under clause (1) of sale to Borrower this Section 10.3. Upon request by Lessee and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that assuming no Special Default or Event of Payment/Bankruptcy Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) Lessor and Lessee shall discuss using a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents netting mechanism in respect of the property being so replaced), payment of the Trust Indenture Supplement subjecting such Replacement Property amounts due to Lessee under this clause (3) and the Trust Indenture has been duly filed for recordation pursuant payment of the Stipulated Loss Value due to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required Lessor under clause (C1) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of this Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein10.3.
Appears in 1 contract
Samples: Lease Agreement (Aircastle LTD)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Engines and/or engines then installed thereon, the Borrower shall forthwith but in any event within 15 days of such occurrence give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower shall pay or cause to be paid to the Indenture Trustee an amount equal to the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, Airframe or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period providedor engines then installed thereon, the Borrower Lessee shall be deemed to have elected to pay, promptly (and shall pay, to the Indenture Trustee in any event within three five (5) Business Days in the amount determined case of an event described in accordance with Section 5.01(a)(1).
paragraphs (ci) Prior and (ii) of the definition of Event of Loss and within fifteen (15) days in any other case) give the Lessor written notice of such Event of Loss (or cause such notice to or at the time of any substitution pursuant to Section 5.01(a)(2be given), which notice shall specify the Borrower will:
actions the Lessee is taking (A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine causing to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (Btaken) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) . It is expressly agreed that if any Base Rent Payment Date occurs on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of or after such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected Lessee shall pay to the Lien Lessor on such date the amount equal to the Base Rent which would have become due and payable on such date in accordance with the terms hereof had no Event of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect Loss so occurred. Following such an Event of the property being so replaced)Loss, the Trust Indenture Supplement subjecting such Replacement Property Term shall end on the earlier of (i) the date the Lessee or Lessor receives the Insurance Proceeds with respect to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and (ii) ninety (90) days after the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien occurrence of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurredLoss, on which date the Lessee shall pay to the Lessor an amount equal to the Agreed Value (as defined in Schedule 3 (Certain Economic Terms) hereto) as of such date of termination and all accrued but unpaid PBH Rent and/or Base Rent to such date of termination. For all purposes hereofUpon full compliance by the Lessee with the terms of this paragraph (a) the Lessor will (subject to insurer’s salvage rights, if any) transfer to, or upon the order of, the property so substituted shall after such transfer be deemed part Lessee on an “as-is, where- is” basis without recourse or warranty, all of the property subject Lessor’s right, title and interest, if any, in and to the Lien of this Trust Indenture Aircraft by an appropriate instrument, and shall be deemed an “Aircraft,” “Airframe” any manufacturer’s or repairer’s warranties relating thereto and “Engine,” as the case may bewill take such other action, at Lessee’s cost, as defined hereinmay be necessary to effect such transfer.
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (ai) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and, in any event event, within 15 three (3) days of after such occurrence occurrence) give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss, and within . By the earlier of (y) sixty (60) days after such occurrencefollowing the Event of Loss Date or (z) the date on which the applicable insurance proceeds are received by the loss payee, give Lessee shall pay or cause to be paid to Lessor in immediately available funds the Indenture Trustee written notice Stipulated Loss Value of the Aircraft together with all other amounts then due and owing by Lessee hereunder.
(ii) Until the date on which the Stipulated Loss Value and the other amounts referred to in clause (b)(i) above are paid in full, Lessee shall be obligated to pay all Basic Rent as scheduled and shall continue to perform all of its election other obligations under the Operative Documents, except to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following extent rendered impossible by the occurrence of such Event of Loss or rendered, in the opinion of Lessor, unnecessary. If the Stipulated Loss Value referred to in clause (yb)(i) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier above is paid on a date other than the date of Borrower’s election to make payment under this paragraph (1))a Basic Rent Date, the Borrower Lessor shall pay refund or cause to be refunded to Lessee any paid to but unaccrued Basic Rent. Upon receipt of the Indenture Trustee an amount equal to the aggregate full amount of outstanding principal, the Stipulated Loss Value and the other amounts referred to in [Lease Agreement] clause (but without Make-Whole Amount, if anyb)(i) above by Lessor pursuant to this Section 13(b), interest and if Lessee has paid all other amounts then due on and payable by Lessee under this Agreement and the other Operative Documents, then (x) Lessor shall, upon the joint written request of Lessee and each insurer or in respect their appointed representatives which contributed to the payment of the Loan CertificatesStipulated Loss Value, or
2. provided no Special Default transfer to the Person designated in such request all of Lessor's right, title and interest in the Aircraft without recourse or Event warranty (except as to absence of Default shall have occurred Lessor Liens, Liens existing prior to Delivery of the Aircraft to Lessee and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business DayLiens granted by Lessor to Lessor's lenders) the Borrower shall cause to be and subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements disclaimer set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee5(a), with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4y) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and Lessee shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined hereinrelieved of its obligations under Section 7.
Appears in 1 contract
Samples: Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Owner shall forthwith but (and in any event event, within 15 fifteen (15) days of after such occurrence occurrence) give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty forty-five (6045) days after such occurrence, Event of Loss the Owner shall give the Indenture Trustee written notice of its election to perform one of the following options (it being understood agreed that if the failure to give Owner shall not have given such notice of election within such period, the Owner shall be deemed to be an election of have elected the option set forth in paragraph clause (1i) below.). The Owner may elect either to:
1. On or before (i) redeem the Business Day next following Secured Certificates in accordance with Section 2.10 hereof not later than the earlier of (x) the 90th Business Day next succeeding the 120th day following the occurrence of such Event of Loss or (y) the third an earlier Business Day following irrevocably specified fifteen (15) days in advance by notice from the receipt Owner to the Indenture Trustee; or
(ii) substitute an aircraft or an airframe or an airframe and one or more engines, as the case may be; provided that, if the Owner does not perform its obligation to effect such substitution in accordance with this Section 7.06(a) during the period of time provided herein, then the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower Owner shall pay or cause to be paid to the Indenture Trustee an amount equal to on the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of Business Day next succeeding the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th 120th day following the occurrence of such Event of Loss the amount specified in clause (i) above. In the event the Owner shall elect to substitute an aircraft (or an airframe or an airframe and one or more engines, as the case may be), the Owner shall at its sole expense, not later than the Business Day next succeeding Business the 120th day if following the 90th day is not a Business Dayoccurrence of such Event of Loss, (x) the Borrower shall cause to be subject subjected to the Lien of this Trust Indenture, in replacement of the Trust Indenture pursuant Airframe with respect to Section 5.01(c) an airframe and an engine for each Engine suffering such which the Event of Loss occurred, a Replacement Airframe and, if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use shall have been installed on the Airframe when it suffered an Event of Loss, a Replacement Engine therefor, such Replacement Airframe and compatible with the other Engine mortgaged hereunder)Replacement Engines, in each case owned by the Borrower if any, to be free and clear of all Liens (other than Permitted Liens) and having at least the a value, utility and remaining useful life and being in as good an operating condition (without regard to hours or cycles) at least equal to the Airframe or Engine, as the Airframe and corresponding Engine, if anycase may be, subject to such Event of Loss (in each case without taking into account hours, cycles assuming no Event of Loss had occurred and maintenance schedule) assuming that such the Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder the Replacement Airframe and the Replacement Engines, if any, shall be of the same or improved make and model as initially mortgaged hereunder the Airframe or Engine, as the case may be, that are replaced and shall be in a passenger configuration (or will be brought into such configuration by Borrower before y) prior to or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the AirframeOwner (or any Lessee), or at its own expense, will (1) furnish the Indenture Trustee a copy of the original xxxx of sale respecting such Replacement Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period providedReplacement Engines, if any, which shall have been duly registered as a “contract of sale” in respect thereof on the Borrower shall be deemed to have elected to payInternational Registry, as applicable, and shall pay, appropriate instruments assigning to the Indenture Trustee within three Business Days the amount determined in accordance benefits, if any, of all manufacturer’s and vendor’s warranties generally available and permitted to be assigned by the Owner with Section 5.01(a)(1).
respect to such Replacement Airframe and Replacement Engines, if any, (c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A2) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower Owner and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to Airframe being replaced may then be registeredregistered as permitted by Section 8(f) of the Participation Agreement with corresponding registrations being made with the International Registry, and as applicable, (B3) cause a financing statement or other requisite documents of a similar nature statements with respect to such Replacement Airframe and Replacement Engines, if any, to be filed pursuant to the Uniform Commercial Code in such place or places as are deemed necessary in order or desirable by counsel for the Indenture Trustee to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement EngineTrustee’s interest therein, and (C4) register or consent to furnish the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate with such evidence of its independent insurance broker to the effect that compliance with the insurance provisions of Article VI Section 7.04 with respect to such Replacement Airframe and Replacement Engines, if any, as the Indenture Trustee’s counsel may reasonably request, (5) furnish the Indenture Trustee with (A) an opinion of in-house counsel to the Owner, or other counsel satisfactory to the Indenture Trustee, stating that the Replacement Engine Airframe and Replacement Engines, if any, has or have been complied with;
3. furnish validly subjected to the Lien of this Trust Indenture, the instruments subjecting such Replacement Airframe and Replacement Engines, if any, to the Lien of this Trust Indenture, have been duly filed for recordation pursuant to the Federal Aviation Act, registered with the International Registry pursuant to the Cape Town Convention, if applicable, or registered or filed pursuant to any other law then applicable to the registration of the Replacement Airframe and Replacement Engines, if any, and no further action, filing or recording of any document is necessary or advisable in order to establish and perfect the Lien of this Trust Indenture on such Replacement Airframe and Replacement Engines, if any (B) a certificate signed by a duly authorized officer of the Borrower Owner stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframefollowing: (i) a description of the replaced Airframe and Engines, if any, which shall be identified by manufacturer, model, U.S. FAA registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe and Replacement Engines, if any, to be received (including the manufacturer, model, U.S. FAA registration number (or other applicable registration information) and manufacturer’s serial number)) as consideration for the replaced Airframe and Engines, if any; (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe and Replacement Engines, if any, is or are of the Borrower will same or an improved model as the Airframe and Engines, if any, requested to be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2)released from this Trust Indenture; and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements (without regard to hours or cycles) of the Replacement Airframe and Replacement Engines, if any, as of the date of such certificate (which in the judgment of the Owner shall be not less than the value, utility and remaining useful life (without regard to hours or cycles) of the Airframe and Engines, if any, requested to be released (assuming no Event of Loss and that such Airframe and Engines, if any, was or were in the condition and repair required to be maintained under this Trust Indenture)); and (v) that no Event of Default or Default has occurred which has not been remedied or waived, and that the Owner will not be in default, by the making and granting of the request for release and the addition of a Replacement Airframe and Replacement Engines, if any, in the performance of any of the terms and covenants of the Owner, and (C) a certificate from either an aircraft engineer (who may be an employee of the Owner) or a firm of independent aircraft appraisers selected by the Owner confirming the accuracy of the information set forth in sub-clause (iv) of the immediately preceding clause (5)(B) of this Section 5.01(a)(27.06(a), and (6) furnish the Indenture Trustee with an opinion of counsel (which shall be Cadwalader, Xxxxxxxxxx & Xxxx LLP and, if not, other counsel chosen by the Owner and reasonably acceptable to the Indenture Trustee) reasonably satisfactory to the Indenture Trustee to the effect that the Indenture Trustee will be entitled to the benefits of Section 1110 of the U.S. Bankruptcy Code with respect to the Replacement Airframe and any Replacement Engine.
6. provide an Airframe, provided that such opinion need not be delivered to the extent that immediately prior to such substitution the benefits of Section 1110 of the U.S. Bankruptcy Code were not, solely by reason of a change in law or opinions from the Borrower’s counsel reasonably satisfactory governmental interpretation thereof, available to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” ”, “Airframe” and “Engine,” ”, as the case may be, as defined herein. Upon the Owner having provided a Replacement Airframe and Replacement Engines, if any, as provided for in this Section 7.06(a), (x) the Lien of this Trust Indenture shall continue with respect to such Replacement Airframe and Replacement Engines, if any, as though no Event of Loss had occurred; the Indenture Trustee shall, at the cost and expense of the Owner, release from the Lien of this Trust Indenture the replaced Airframe and Engines, if any, with respect to which such Event of Loss occurred, by executing and delivering to the Owner such documents and instruments, prepared at the Owner’s expense, as the Owner may reasonably request to evidence such release including, without limitation, any registrations with the International Registry pursuant to the Cape Town Convention; and (y) the Indenture Trustee shall assign to the Owner all claims it may have against any other Person arising from the Event of Loss and the Owner shall receive all insurance proceeds and proceeds from any award in respect of condemnation, confiscation, seizure or requisition, including any investment interest thereon, to the extent not previously applied to the purchase price of the Replacement Airframe and Replacement Engines, if any, as provided in Sections 7.04(b) and 7.06(c)(i) hereof.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Northwest Airlines Corp)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Lessee shall forthwith but (and in any event event, within 15 fifteen (15) days of after such occurrence occurrence) give each Holder and the Indenture Trustee Lessor written notice of such Event of Loss, and within sixty forty-five (6045) days after such occurrence, Event of Loss Lessee shall give the Indenture Trustee Lessor written notice of its election to perform one of the following options (it being understood agreed that the failure to give if Lessee shall not have given such notice of election within such period, Lessee shall be deemed to be an election of have elected the option set forth in paragraph clause (1i) below.). Lessee may elect either to:
1. On or before (i) make the Business Day next following payments specified in this clause (i), in which event not later than the earlier of (x) the 90th Business Day next succeeding the 120th day following the occurrence of such Event of Loss or (y) the third an earlier Business Day following irrevocably specified fifteen (15) days in advance by notice from Lessee to Lessor and the receipt of Indenture Trustee (the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)"LOSS PAYMENT DATE"), the Borrower Lessee shall pay or cause to be paid to Lessor in funds of the Indenture Trustee type specified in Section 3(f) hereof, an amount equal to the aggregate Stipulated Loss Value of the Aircraft corresponding to the Stipulated Loss Value Date occurring on or immediately following the Loss Payment Date; PROVIDED, HOWEVER, that if a Lease Period Date shall occur prior to the Loss Payment Date with respect to which Stipulated Loss Value is determined, Lessee shall pay on such Lease Period Date an amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then equal to the Basic Rent that would have been due on or in respect such Lease Period Date if such Event of the Loan CertificatesLoss had not occurred, or
2. (ii) substitute an aircraft or an airframe or an airframe and one or more engines, as the case may be; PROVIDED that, if Lessee does not perform its obligation to effect such substitution in accordance with this Section 10(a), during the period of time provided no Special Default herein, then Lessee shall pay or Event of Default shall have occurred and cause to be continuing, not later than paid to Lessor on the 90th Business Day next succeeding the 120th day following the occurrence of such Event of Loss the amount specified in clause (or i) above. At such time as Lessor shall have received the next succeeding Business day if amounts specified in subparagraph (i) above, together with all other amounts that then may be due hereunder (including, without limitation, all Basic Rent due before the 90th day is not a Business Daydate of such payment and all Supplemental Rent), under the Participation Agreement and under the Tax Indemnity Agreement, (1) the Borrower obligation of Lessee to pay the installments of Basic Rent, Supplemental Rent, Stipulated Loss Value, Termination Value or any other amount shall cause cease to be subject to accrue, (2) this Lease shall terminate, (3) Lessor will comply with the Lien terms of the Trust Indenture pursuant and transfer to Section 5.01(cor at the direction of Lessee, without recourse or warranty (except as to the absence of Lessor Liens, including for this purpose Liens which would be Lessor Liens but for the proviso in the definition of Lessor Liens), all of Lessor's right, title and interest in and to the Airframe and any Engines subject to such Event of Loss, as well as any Engines not subject to such Event of Loss, and furnish to or at the direction of Lessee a xxxx of sale in form and substance reasonably satisfactory to Lessee (or any Sublessee), evidencing such transfer, and (4) an airframe Lessee will be subrogated to all claims of Lessor, if any, against third parties, for damage to or loss of the Airframe and an engine for each Engine suffering any Engines which were subject to such Event of Loss if any (to the extent of the same manufacturer then insured value of the Aircraft. In the event Lessee shall elect to substitute an equivalent aircraft (or improved model an airframe or an airframe and one or more engines, as the Engine case may be) Lessee shall, at its sole expense, not later than the Business Day next succeeding the 120th day following the occurrence of such Event of Loss, (A) convey or cause to be conveyed to Lessor and suitable for installation to be leased by Lessee hereunder, an aircraft (or an airframe or an airframe and use on the Airframe and compatible one or more engines which, together with the other Engine mortgaged hereunder), in each case owned by Engines constituting a part of the Borrower Aircraft but not installed thereon at the time of such Event of Loss constitute the Aircraft) free and clear of all Liens (other than Permitted Liens) and having at least the a value, utility and remaining useful life and being in as good an operating condition as at least equal to the Airframe and corresponding Engine, if any, Aircraft subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such the Aircraft had been maintained in accordance with the terms of this Trust IndentureLease; provided PROVIDED that any aircraft aircraft, airframe or airframe engine so substituted hereunder shall be of the same or improved make and model as those initially mortgaged leased hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before B) prior to or at the time of any such substitution).
, Lessee (b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2Sublessee), the Borrower will:
at its own expense, will (A1) furnish Lessor with a full warranty xxxx of sale and a Federal Aviation Administration xxxx of sale, in form and substance reasonably satisfactory to Lessor, evidencing such transfer of title, (2) cause a Lease Supplement and a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower Lessee and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to Airframe may then be registeredregistered as permitted by Section 8(f) of the Participation Agreement, and (B3) cause a financing statement or other requisite documents of a similar nature statements with respect to such substituted property to be filed pursuant to the Uniform Commercial Code in such place or places as are deemed necessary in order or desirable by Lessor to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture its and the Indenture Supplement referred to above;
2. Trustee's interest therein and herein, (4) furnish a certificate Lessor with such evidence of its independent insurance broker to the effect that compliance with the insurance provisions of Article VI Section 11 with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. substituted property as Lessor may reasonably request, (5) furnish a certificate signed by a duly authorized officer Lessor with copies of the Borrower stating the following on behalf documentation required to be provided by Lessee pursuant to Section 5.06 of the Borrower:
(a) Trust Indenture, and Lessor simultaneously will comply with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date terms of the Trust Indenture Supplement relating and transfer to or at the direction of Lessee, without recourse or warranty (except as to the Replacement Airframe the Borrower will be the owner absence of such Replacement Airframe, free and clear of all Liens except Permitted Lessor Liens, that such Replacement Airframe will on such date meet including for this purpose Liens which would be Lessor Liens but for the requirements proviso in the definition of Section 5.01(a)(2Lessor Liens); , all of Lessor's right, title and (iv) that no Special Default or Event of Default has occurred and is continuinginterest, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (includingif any, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, as the case may be, with respect to which such Event of Loss occurred. For all purposes hereof, occurred and furnish to or at the property so substituted shall after such transfer be deemed part direction of the property subject Lessee a xxxx of sale in form and substance reasonably satisfactory to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.Lessee (or any
Appears in 1 contract
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the AirframeAirframe and one or more Engines, any Engines and/or engines then installed thereon, the Borrower shall (1) forthwith but (and, in any event event, within 15 ten days of such occurrence occurrence) give each Holder and the Indenture Security Trustee written notice of such Event of Loss, Loss and (2) within sixty (60) 60 days after such occurrence, give the Indenture Security Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph clause (1I) below.). Borrower shall:
1. On or before (I) to the Business Day next following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the extent not paid to Security Trustee as insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1))proceeds, the Borrower shall pay or cause to be paid to Security Trustee not later than the Indenture Trustee an earlier of (i) 180 days after the occurrence of such Event of Loss, (ii) 5 Business Days following the payment of insurance proceeds with respect to such Event of Loss, or (iii) the Final Maturity Date, the then outstanding principal amount equal of the Notes, together with accrued interest thereon to the aggregate amount date of outstanding principalsuch payment, (but without Make-Whole Amount, if any), interest plus the Breakage Amount and all other amounts then due on or in respect of to Note Holders and the Loan Certificates, Security Trustee under the Operative Documents; or
2. (II) provided that no Special Specified Default or Event of Default shall have occurred and be continuing, not no later than 180 days following such Event of Loss substitute an aircraft or an airframe or an airframe and one or more engines, as the 90th day following case may be. At such time as Security Trustee shall have received the occurrence amounts specified in (I) above, the Lien of the Mortgage shall be terminated pursuant to, and in accordance with, Section 9.01 hereof. If Borrower elects to substitute an aircraft (or an airframe or an airframe and one or more engines, as the case may be), then Borrower shall, at its expense, obtain good and marketable title to another aircraft (or an airframe or an airframe and one or more engines that, together with the Engines or Engine constituting a part of the Aircraft but not installed thereon at the time of such Event of Loss (or Loss, constitute the next succeeding Business day if the 90th day is not a Business DayAircraft) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liensthe Lien of this Mortgage) and having at least the value, utility and remaining economic useful life (as confirmed by an independent appraiser selected by Security Trustee and reasonably acceptable to Borrower) and being in as good an operating condition as the Airframe and corresponding Engine, if any, Aircraft subject to such Event of Loss (Loss, in each case without taking into account hours, cycles and maintenance schedule) assuming that such the Aircraft had been maintained in accordance with the terms of this Trust Indenture; hereof, provided that any aircraft aircraft, airframe or airframe engine so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, and in the Airframecase of an Engine, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.Acceptable
Appears in 1 contract
Samples: Aircraft Mortgage and Security Agreement (Skywest Inc)
Event of Loss with Respect to the Aircraft. (ai) Upon Lessee will deliver to Lessor written notice of the occurrence of an any Event of Loss with respect to the Airframe or the Airframe, any Engines and/or engines then installed thereon, the Borrower shall forthwith but in any event Aircraft within 15 days of such occurrence give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty ten (6010) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1occurrence thereof. On or before the Business Day next Basic Rent Date following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than or, if the date Event of Borrower’s election to make payment under this paragraph Loss occurs after the Last Basic Rent Date, within thirty (1)30) days after the Event of Loss), the Borrower shall Lessee will pay or cause to be paid to the Indenture Trustee Lessor an amount equal to the aggregate amount sum of outstanding principal(A) all Rent then due hereunder, plus (B) the Casualty Value of the Aircraft determined as of such next Basic Rent Date or the Last Basic Rent Date, as applicable. Upon Lessor’s receipt of such amounts, Lessee’s obligation to pay further Basic Rent for the Aircraft will cease, but without Make-Whole Amount, if any), interest Lessee’s obligation to pay Supplemental Rent and any other amounts then due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engineunder this Lease, if any, subject will remain in full force and effect. Except in the case of total destruction, permanent disappearance, Requisition of Use, or Return to such Event of Loss (in each case without taking into account hoursManufacturer, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or Lessor will be brought into such configuration by Borrower before or at the time entitled to possession of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1).
(c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed unless possession by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe an insurance carrier is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary required in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2settle an insurance claim. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower Lessor will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that under no Special Default or Event of Default has occurred and is continuing, or
(b) duty to Lessee to pursue any claim against any Person in connection with respect to any Replacement Engine: (i) a description of the Engine suffering the an Event of Loss, which shall but Lessee may at its sole cost and expense and with Lessor’s prior written consent pursue the same on behalf of Lessor in such manner as may be identified by manufacturer’s serial number; reasonably acceptable to Lessor.
(ii) a description Following payment to Lessor of the Replacement Engine (includingCasualty Value, in each case, the manufacturer’s name and serial number); (iii) that on the date Lessee will dispose of the Trust Indenture Supplement relating Aircraft as Lessor’s agent as soon as it is able for the best price obtainable. Any such disposition will be on an “AS-IS, WHERE-IS” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY BY LESSOR (OTHER THAN AS TO LESSOR’S LIENS) of any kind whatsoever. Lessee may retain all amounts received from such disposition up to an amount equal to the Replacement Engine, sum of the Borrower Casualty Value actually paid by Lessee plus Lessee’s reasonable costs and expenses of disposition. Any excess will be paid over to, and retained by, Lessor. In the owner event of such Replacement Enginea Return to Manufacturer, free and clear of Lessee will be entitled to all Liens except Permitted Liens, that such Replacement Engine will on such date meet amounts payable to Lessor by the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning Manufacturer up to the Indenture Trustee as additional collateral under this Trust Indenture amount, if any, of the benefit of Manufacturer’s warranties with Casualty Value actually paid by Lessee to Lessor, and any excess will be retained by Lessor. With respect to such (A) Replacement Airframe substantially the same as the Aircraft Warrantiesa Requisition of Use, Lessee will be entitled to all amounts paid by any governmental authority up to the extent then in effect and (B) Replacement Engine substantially the same as the Engine WarrantiesCasualty Value actually paid by Lessee, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to excess will be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunderpaid over to, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Enginesretained by, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined hereinLessor.
Appears in 1 contract
