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Common use of Event of Loss Clause in Contracts

Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. (i) Upon the occurrence of an Event of Loss with respect to any Airframe or any Airframe and the Engines, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company shall: (A) forthwith (and in any event, within five (5) Business Days after such occurrence) give the Collateral Agent written notice of such Event of Loss; and (B) not later than the earlier of (x) 60 days after the occurrence of such Event of Loss or (y) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Loss, give the Collateral Agent 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 subclause (1) below): (1) Not later than the earlier of (x) the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss or (y) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.

Appears in 1 contract

Samples: Mortgage and Security Agreement (Ata Holdings Corp)

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Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. Any event (i) Upon which would otherwise ------------- constitute a Casualty during the occurrence Base Term, and (ii) which, in the good faith judgment of an Event the Lessee, renders repair and restoration of Loss with respect the Leased Property impossible or impractical, or requires repairs to any Airframe or any Airframe the Leased Property that would cost in excess of fifty percent (50%) of the original cost of the Leased Property, and (iii) as to which the Engines, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company shall: (A) forthwith (and in any eventLessee, within five sixty (560) Business Days after such occurrence) give the Collateral Agent written notice of such Event of Loss; and (B) not later than the earlier of (x) 60 days after the occurrence of such event, delivers to the Lessor an Officer's Certificate notifying the Lessor of such event and of such judgment, shall constitute an "Event of Loss". In the case of any other ------------- event which constitutes a Casualty, the Lessee shall restore the Leased Property pursuant to Section 10.3. If an Event of Loss or other than an Event ------------ of Taking shall occur, the Lessee shall pay to the Lessor on the later of (yi) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Loss, give the Collateral Agent 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 subclause (1) below): (1) Not later than the earlier of (x) the Business Day next succeeding the one hundred eightieth (180th) thirtieth day following the occurrence of such Event of Loss or (y) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day and (ii) the next Payment Date following delivery of the occurrence of such Event of LossOfficer's Certificate pursuant to clause (iii) (the applicable day being the "Loss Payment Date"), the Company shall, above an amount equal to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of LossLease Balance. Upon the Lessor's receipt of the insurance proceeds from the Company or the relevant insurance providerLease Balance on such date, the Collateral Agent Lessor shall apply such insurance proceeds on behalf of cause the Company as a prepayment Lessor's interest in the Leased Property to be conveyed to the Lessee in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as 14.5 hereof; upon completion of such election date or (y) the Company shall have elected to make a substitution under purchase, ------------ but not prior thereto, this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 Lease with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) Leased Property and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement obligations hereunder with respect to each the Leased Property shall terminate, except with respect to obligations and liabilities hereunder, actual or contingent, that have arisen or relate to events occurring on or prior to such Replacement Airframedate of purchase, Replacement Engine and Replacement Propeller or which are expressly stated herein to survive termination of this Lease. Upon the consummation of the purchase of the Leased Property pursuant to this Section 10.1, any proceeds derived from insurance required ------------ to be maintained by the Lessee pursuant to this Lease for the Leased Property remaining after payment of such purchase price shall be true and correct; and (F) paid over to, or retained by, the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine Lessee or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicableit may direct, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent Lessor shall assign to the Company Lessee, without warranty, all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all Lessor's rights to and interest in such insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed required to be subjected maintained by the Lessee pursuant to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined hereinthis Lease.

Appears in 1 contract

Samples: Master Lease Agreement (Jones Financial Companies Lp LLP)

Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. Any event (i) Upon which would otherwise ------------- constitute a Casualty during the occurrence Base Term, and (ii) which, in the good faith judgment of an Event the Lessee, renders repair and restoration of Loss with respect the Leased Property impossible or impractical, or requires repairs to any Airframe or any Airframe the Leased Property that would cost in excess of fifty percent (50%) of the original cost of the Leased Property, and (iii) as to which the Engines, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company shall: (A) forthwith (and in any eventLessee, within five sixty (560) Business Days after such occurrence) give the Collateral Agent written notice of such Event of Loss; and (B) not later than the earlier of (x) 60 days after the occurrence of such Event of Loss or (y) the fifth (5th) Business Day following notification event, delivers to the Company Lessor an Officer's Certificate notifying the Lessor of receipt by the loss payee such event and of the insurance proceeds with respect to such judgment, shall constitute an "Event of Loss". In the case ------------- of any other event which constitutes a Casualty, give the Collateral Agent written notice Lessee shall restore the Leased Property pursuant to Section 10.3. If an Event of its election ------------ Loss other than an Event of Taking shall occur, the Lessee shall pay to perform one of the following options (it being understood that Lessor on the failure to give such notice shall be deemed to be an election of the option set forth in subclause (1) below): (1) Not later than the earlier of (xi) the Business Day next succeeding the one hundred eightieth (180th) thirtieth day following the occurrence of such Event of Loss or (y) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day and (ii) the next Payment Date following delivery of the occurrence of such Event of LossOfficer's Certificate pursuant to clause (iii) (the applicable day being the "Loss Payment Date"), the Company shall, above an amount equal to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of LossLease Balance. Upon the Lessor's receipt of the insurance proceeds from the Company or the relevant insurance providerLease Balance on such date, the Collateral Agent Lessor shall apply such insurance proceeds on behalf of cause the Company as a prepayment Lessor's interest in the Leased Property to be conveyed to the Lessee in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) 14.5 hereof; upon completion of such purchase, but not prior ------------ thereto, this Lease with respect to the Leased Property and all obligations hereunder with respect to the Leased Property shall terminate, except with respect to obligations and liabilities hereunder, actual or contingent, that have arisen or relate to events occurring on or prior to such date of purchase, or which are expressly stated herein to survive termination of this Lease. Upon the consummation of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien purchase of the Security Documents such Aircraft by executing and delivering Leased Property pursuant to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as the "Replacement Closing Date")10.1, 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents proceeds derived from insurance ------------ required to be filed or delivered maintained by the Lessee pursuant to this Lease for the laws Leased Property remaining after payment of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe purchase price shall be one paid over to, or more airframesretained by, shall be of the same Manufacturer and type Lessee or as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframesit may direct, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent Lessor shall assign to the Company Lessee, without warranty, all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all Lessor's rights to and interest in such insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed required to be subjected maintained by the Lessee pursuant to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined hereinthis Lease.

Appears in 1 contract

Samples: Master Lease Agreement (Jones Financial Companies Lp LLP)

Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. (i) Upon the occurrence of If there shall occur an Event of Loss with respect to any Airframe all or any Airframe a portion of the Property (the "Affected Property"), Lessee shall give Lessor prompt written notice thereof and elect, within sixty (60) days after the Enginesoccurrence of the Event of Loss, Propellersone of the following options (provided that Lessee's election of proceeding under Section 12.l(a)(ii) below shall be effective only if restoration can be completed by the time specified in such clause (ii)): . (i) Offer to purchase the Affected Property from Lessor, Spare Engines and/or engines then installed on any Airframea Rent Payment Date, which is the Company shall: first Rent Payment Date at least ninety (90) days after Lessor accepts such offer (such Rent Payment Date being referred to herein as the "Purchase Date"), for a purchase price equal to the sum of (A) forthwith the Stipulated Loss Value for the Affected Property, plus (B) all unpaid Rent with respect to the Affected Property due and in any event(without duplication) all Rent with respect to the Affected Property accruing, within five but unpaid through such Purchase Date, plus (5C) Business Days after such occurrence) give an amount equal to the Collateral Agent written notice reasonable out of pocket expenses of Lessor relating to the purchase, if any, by Lessee as a result of such Event of Loss; and , including reasonable attorneys' fees and costs actually incurred. Lessor shall have sixty (B60) days from the date of receipt of Lessee's offer to decide whether to reject such offer. If Lessee has not received a response after forty (40) days, it may send a second notice to the foregoing parties, stating clearly in a legend to such notice that failure to reject such offer by the later than the earlier of (x) 60 the original sixty (60) day period, or (y) ten (10) days after delivery of such second notice, Lessor shall be deemed to have accepted such offer; or (ii) Restore and rebuild the occurrence Improvements damaged as a result of such Event of Loss or (y) the fifth (5th) Business Day following notification so that such Improvements will have a value, utility and remaining economic life as nearly as reasonably practicable equal to the Company of receipt by the loss payee value, utility and remaining economic life of the insurance proceeds with respect Improvements immediately prior to such Event of Loss, give and in all events as required by Section 8.2, such restoration to be substantially completed, subject to force majeure, by the Collateral Agent written notice earlier to occur of its election to perform one (x) the twenty-fourth (24th) month anniversary of the following options Event of Loss, or (it y) three (3) months prior to the expiration of the Lease Term (such earlier date being understood referred to herein as the "Restoration Deadline Date") and Lessee shall remain liable for the completion of such restoration beyond the expiration of the Lease Term to the extent not completed prior to such expiration and shall pay Base Rent and Supplemental Rent with respect to the Affected Property from the date of expiration to the date of completion. Lessee shall be entitled to retain all insurance proceeds or condemnation awards in the event Lessee elects to proceed pursuant to this Section 12.1(a)(ii). In the event that Lessee has the right under this Section 12.l (a) to make an election between Section 12.l(a)(i) and 12.l(a)(ii), Lessee's election shall apply equally to the Property and to the portion of the Building not leased to Lessee hereunder, pursuant to Section 1 of the AMP Lease; provided that in no event shall Lessor be entitled to any "double" payment of the Stipulated Loss Value or Net Proceeds, or any portion thereof, or any other payment made in connection with this Article 12. (b) If Lessee makes an offer to purchase pursuant to Section 12.l(a)(i) above, and Lessor accepts such offer or is deemed to accept such offer within the sixty (60) day period referred to in the last sentence of Section 12.l(a)(i), the conveyance shall occur, and Lessee shall pay to Lessor the Stipulated Loss Value, Rent and other amounts described in said Section 12.1(a)(i) on the Purchase Date; provided that any Net Proceeds related to the Affected Property previously distributed to Lessor shall be credited against the portion of such purchase price payable to the Lessor and the balance of Net Proceeds, if any, shall be paid to Lessee. Concurrently with the payment in full of the amounts payable pursuant to said Section 12.l (a)(i), the terms of Article 13 shall be complied with. (c) In the event Lessee has made the election described in Section 12.l(a)(ii) above but, notwithstanding diligent efforts in good faith, has failed to comply with terms thereof by the Restoration Deadline Date, then Lessee shall be deemed to have made the offer described in- Section 12.l(a)(i) above on the Restoration Deadline Date to purchase the Affected Property; provided, however, in the event Lessee has elected to proceed pursuant to Section 12.l(a)(ii) above, and has not completed restoration as required therein within the time frame set forth in sub clause (x) thereof, Lessee may elect, within ten (10) days of expiration of such period, in lieu of being deemed to make the offer described in Section 12.l(a)(i) above, to continue to elect to proceed pursuant to Section 12.l(a)(ii) above, upon which election (even if restoration is not completed until after the expiration of the Term, in which event, the Term shall be deemed extended on the same terms as are in effect immediately prior to the expiration, until such time as restoration has been completed), Lessee's rights to use and occupy the Property shall continue unimpaired, subject to Lessee's continued payment of Rent and Supplemental Rent on the entire Property. Such election shall require Lessee to pay to Lessor, within thirty (30) days of demand therefor, an amount equal to all tax benefits lost by Lessor by virtue of the Property not being substantially complete and in service (for depreciation purposes) from the expiration date of the period set forth in Section 12.l(a)(ii)(x) above until the date the Property is substantially complete and in service (for depreciation purposes), grossed up to reflect the federal (and state and local, if applicable) Taxes payable by Lessor (at the highest marginal rate applicable to an entity such as Lessor) on such amount, so that the failure net effect to give Lessor will be to receive all the economic benefits it would have received had the Property been repaired and restored on time. If Lessee has not completed restoration in accordance with this Section 12.1(c) by six (6) months prior to the expiration of the Lease Term, then such notice non-completion shall be deemed to be an election a Lease Event of Default hereunder. (d) In the event Lessor rejects the offer of Lessee to purchase the Affected Property as provided in Section 12.l(a)(i), then, at Lessee's option in its sole discretion, this Lease shall terminate and the following amount shall be paid to Lessor as of the option set forth effective date of the termination of this Lease: (A) the portion of the Stipulated Loss Value attributable to the Affected Property, plus (B) unpaid Rent due with respect to the Affected Property as of the effective date of the termination of this Lease. If Lessor rejects Lessee's offer to purchase the Property and Lessee elects, in subclause its sole discretion, to terminate this Lease, then any Net Proceeds, including those previously distributed to Lessor, shall be paid to Lessee. If Lessee does not elect, in its sole discretion, to terminate this Lease as provided above, then Lessee shall elect to proceed under Section 12.l (1a)(ii) below): above. For purposes of this Section 12.l (1) Not later than d), the effective date of the termination of this Lease shall be the earlier of (xI) the Business Day next succeeding date that is ninety (90) days after Lessor rejects Lessee's offer to purchase the one hundred eightieth (180th) day following the occurrence of such Event of Loss Affected Property or (yII) the first Interest Payment Date that is at least three (3) Business Days after receipt by date which, but for the loss payee casualty, would have been the date of expiration or earlier termination of the insurance proceeds Term. (e) Upon payment in full of the amounts set forth in clauses (A) and (B) of subsection (d) above (in the event Lessor rejected Lessee's offer to purchase) or the first sentence of Section 12.l(a)(i) (in the event Lessor accepts Lessee's offer to purchase), (1) the Lease Term shall end, and (2) the obligations of Lessee hereunder (other than any obligations expressed herein as surviving termination of this Lease) with respect to such Event Affected Property shall terminate as of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence date of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such datepayment. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.

Appears in 1 contract

Samples: Lease Agreement (Griffin Capital Essential Asset REIT II, Inc.)

Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. (i) Upon the occurrence of If there shall occur an Event of Loss with respect to any Airframe or any Airframe the Property, Lessee shall give Lessor prompt written notice thereof and the Engines, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company shall: (A) forthwith (and in any eventelect, within five thirty (530) Business Days after such occurrence) give the Collateral Agent written notice of such Event of Loss; and (B) not later than the earlier of (x) 60 days after the occurrence of such Event of Loss or (y) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Loss, give the Collateral Agent written notice of its election to perform one of the following options (it being understood provided that the failure to give such notice shall be deemed to be an Lessee's election of the option set forth in subclause proceeding under clauses (1b) below): (1) Not later than the earlier of (x) the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss or (y) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(ie) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as the "Replacement Closing Date"), the following documents shall have been duly authorized, executed and delivered by the respective party effective only if restoration or parties thereto and shall be in full force and effect, and an executed counterpart of each thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframessubstitution, as the case may be, of can be completed by the same Manufacturer time specified in such clauses (b) and type as (c)): (a) Offer to purchase the Engine to be replaced and each Replacement Propeller Property from Lessor, on a date specified in such notice, which date shall be a date for which a value is set forth on Schedule 12.01 hereto (the propeller applicable to such engine or engines, as "Termination Value Date") occurring not less than ninety (90) days and not more than one hundred fifty (150) days after the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence date of such Event of Loss, assuming for a purchase price equal to the Company was in compliance sum of (i) the Termination Value for the Property, determined as of such Termination Value Date, plus (ii) all unpaid Rent with respect to the Property due and (without duplication) all relevant terms hereofRent with respect to the Property accruing, but unpaid through such Termination Value Date, plus (iii) an amount equal to the reasonable out-of-pocket expenses of any Indemnity relating to the purchase, if any, by Lessee as a result of such Event of Loss including reasonable attorneys' fees and costs actually incurred. Lessor shall have sixty (60) days from the date of receipt of Lessee's offer to decide whether to reject such offer, otherwise Lessor shall be deemed to have accepted such offer; (b) Restore and rebuild the Improvements and Fixtures and repair and replace the Equipment damaged or destroyed as a result of such Event of Loss so as to have at least a value, utility, condition, operating function and remaining useful life equal to the value, utility, condition, operating function and remaining useful life of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections Property immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with this Lease), and in all relevant terms hereofevents in the condition required by Section 8.02, such restoration and replacement to be completed the earlier to occur of (x) the first anniversary of the Event of Loss, or (y) six months prior to the expiration of the Lease Term (and (II) an opinion Lessee shall remain liable for the completion of qualified FAA counsel such restoration beyond the expiration of the Lease Term to the extent not completed prior to such expiration and shall pay Base Rent (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", Renewal Rent as the case may be, as defined herein.) and Supplemental Rent with respect to the Property from the date of expiration to the date of completion); or

Appears in 1 contract

Samples: Lease Agreement (Dollar General Corp)

Event of Loss. Section 3.01 In the event that the Aircraft shall suffer an Event of Loss, Customer shall pay, on the earlier of (i) the date Customer receives all insurance proceeds in respect of such Event of Loss, and (ii) sixty (60) days after the date on which such Event of Loss shall be deemed to have occurred, an amount (the "Prepayment Amount") equal to the sum of the following: (a) the unpaid principal amount of the Note; (b) interest accrued thereon to the date of prepayment; (c) 3.0% of such unpaid principal amount, if the Prepayment Amount is payable prior to the first anniversary of the Note; and (d) any and all other amounts then due. The amounts payable in connection with an Event of Loss pursuant to clauses (a), (b) and (c) of the preceding sentence (assuming timely payment of all amounts due from time to time under the Note) are specified in Annex B attached hereto. Upon payment in full of the Prepayment Amount and so long as no Event of Default has occurred and is continuing, the Aircraft shall be released from the security interest of this Agreement. An Event of Loss with Respect respect to the Aircraft shall be deemed to have occurred if an Event of Loss occurs with respect to the Airframe. An Event of Loss with respect to any Engine shall not, without loss of the Airframe, be deemed an Event of Loss with respect to the Aircraft. (i) . Upon the occurrence of an Event of Loss with respect to any Airframe or any Airframe and an Engine under circumstances in which there has not occurred an Event of Loss with respect to the Engines, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company Customer shall give Lender prompt written notice thereof and shall: (A) forthwith (and in any event, within five sixty (560) Business Days after such occurrence) give the Collateral Agent written notice of such Event of Loss; and (B) not later than the earlier of (x) 60 days after the occurrence of such Event of Loss or Loss, (yi) replace the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds Engine with respect to which such Event of Loss occurred with a similar or better engine of the same make and model number as the Engine suffering the Event of Loss; and (ii) execute such documents and make such filings as Lender may deem desirable or necessary to subject such engine to the lien of this Agreement. Such engine shall be free and clear of all Liens, have a value, utility, and useful life, without regards to hours and cycles, at least equal to, and be in as good an operating condition as, the Engine suffering the Event of Loss, give the Collateral Agent written notice of its election to perform one assuming such Engine was 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 subclause (1) below): (1) Not later than the earlier of (x) the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss or (y) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount value and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred utility and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed terms hereof immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.

Appears in 1 contract

Samples: Loan and Aircraft Security Agreement (Hughes Supply Inc)

Event of Loss. Section 3.01 5.01 (a) Event of Loss with Respect to an the Aircraft. (i) . Upon the occurrence of an Event of Loss with respect to any the Airframe or any the Airframe and the Engines, Propellers, Spare Engines and/or engines then installed on any Airframethereon, the Company shall: Owner shall (A1) forthwith (and in any event, within five (5) Business Days fifteen days after such occurrence) give the Collateral Agent Indenture Trustee written notice of such Event of Loss; and Loss and (B2) not later than the earlier of (x) 60 within 90 days after the occurrence of such Event of Loss or (y) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Lossoccurrence, give the Collateral Agent 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 subclause clause (1i) below): (1i) Not later than the earlier of (x) the first Business Day next succeeding the one hundred eightieth (180th) 120th day following the occurrence of such Event of Loss or (y) the first Interest Payment Date Business Day that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) 65th day following the occurrence of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company Owner shall, to the extent not paid to the Collateral Agent Indenture Trustee as insurance proceeds, pay or cause to be paid to the Collateral Agent Indenture Trustee an amount sufficient to satisfy the insurance proceeds Owner's obligations under Section 6.01(a)(i) and to redeem the Notes as provided in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds6.01(a)(ii); or (2ii) Not later than the first Business Day next succeeding the one hundred eightieth (180th) 120th day following the occurrence of such Event of Loss, the Company Lessee shall substitute an aircraft (together with engines andor an airframe or an airframe and one or more engines, if applicableas the case may be, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreementhereof, provided that if (xA) a Specified Default or an Indenture Event of Default (other than as a direct result of such Event of Loss) shall have occurred and be continuing as of such election date or (yB) the Company Lessee shall have elected to make a substitution under this clause (2ii) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company Lessee shall make the payments required by clause (1i) above on such date. (ii) . At such time as the Company Lessor shall have complied fully with received the provisions sum of the amounts specified in clause (1i) above, the Collateral Agent Indenture Trustee shall release from the Lien of this Agreement the Security Documents such Aircraft by executing and delivering to the Company Owner all documents and instruments, prepared at the Company's sole cost and expense, instruments as the Company Owner may reasonably request to evidence such release. (iii) . The CompanyOwner's right to substitute any a Replacement Airframe, Replacement Engine Airframe and Replacement Propeller Engines, if any, as provided in Clause (B)(2) of Section 3.01(a)(i5.01(a)(ii) shall be subject to the fulfillment, at the CompanyOwner's sole cost and expense, of the following to conditions precedent: (Ai) on the date when any the Replacement Airframe, Replacement Engine Airframe and Replacement Propeller Engines, if any, is subjected to the Lien of the Security Documents this Agreement (such date being referred to in this Section 3.01 5.01 as 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 thereof (or, in the case of the FAA Bill xx Sale and full warranty bill of sale referred to below, a photocopy thereof) shall have been delivered by the Company to the Collateral Agent:Indenture Trustee: [Trust Indenture and Mortgage (2000-2 747-1)] (IA) a Security Agreement an Indenture Supplement (Aircraft) covering each such the Replacement Airframe, Replacement Engine Airframe and Replacement Propeller Engines, if any, which shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such the Replacement Airframe, Replacement Engine Airframe and Replacement Propeller is Engines, if any, are to be registered in accordance with Section 2.01(a)(iii4.01(a)(3), as the case may be; (B) an FAA Bill xx Sale (or a comparable document, if any, of another aviation authority, if applicable) covering the Replacement Airframe and Replacement Engines, if any, executed by the former owner thereof in favor of the Owner; (C) a full warranty (as to title) bill xx sale, covering the Replacement Airframe and Replacement Engines, if any, executed by the former owner thereof in favor of the Owner (or, at the Owner's option, other evidence of the Owner's ownership of such Replacement Airframe and Replacement Engines, if any, reasonably satisfactory to the Indenture Trustee); and (IID) UCC Uniform Commercial Code financing statements (and or any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such the Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngines, if any, may be registered in accordance with Section 2.01(a)(iii4.01(a)(3)) as may be are deemed necessary or advisable desirable by counsel for the Indenture Trustee to protect the security interests of the Collateral Agent Indenture Trustee in each such the Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngines, if any; (Bii) each the Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer or an improved make and type model as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured Airframe replaced and each Replacement Engine shall be the engine applicable to such airframe or airframesan Acceptable Alternate Engine, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngines, dated within ten if any, have a value and utility (10with respect to Engines, without regard to hours or cycles) Business Days of at least equal to, and be in as good operating condition and repair as, the Replacement Closing Date, evidencing Airframe and any Engines replaced (assuming that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was Airframe and Engines were in the condition and state of repair required by this Security Agreement)the terms hereby) as evidenced by a certificate of an aircraft engineer (who may be an employee of the Owner) or an appraisal from an independent aircraft appraiser; (Ciii) the Collateral Agent Indenture Trustee (acting directly or by authorization to its special counsel) shall have received satisfactory evidence as to the compliance with Section 2.04 4.03 with respect to each such the Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngines, if any; (Div) the Collateral Agent, Indenture Trustee at the expense of the CompanyOwner, shall have received (acting directly or by authorization to its special counsel) (IA) an opinion of counsel to the Company Owner (which opinion and counsel shall may be reasonably satisfactory to the Collateral AgentOwner's General Counsel), addressed to the Collateral AgentIndenture Trustee, to the effect that each the Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngine, if any, has or have duly been made subject to the Lien of the Security Documentsthis Agreement, that all required action has been [Trust Indenture and Mortgage (2000-2 747-1)] taken in order to maintain, and such action shall maintain, the effectiveness, perfection effectiveness and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company Owner was in compliance with all relevant terms hereof) of the security interests in each such the Airframe, Engine and Propeller the Engines and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, that the protections afforded to the Collateral Agent Indenture Trustee by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company Owner was in compliance with all relevant terms hereof) and (IIB) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii4.01(a)(3)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral AgentIndenture Trustee, as to, in the case of FAA counsel, the due recordation of the Security Agreement Indenture Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent Indenture Trustee in each such the Replacement Airframe, Replacement Engine Airframe and Replacement Propeller Engines, if any, or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (Fv) the Collateral Agent Indenture Trustee (acting directly or by authorization to special counsel) shall have received an Officerofficer's Certificate certificate of Owner stating that, in the opinion of the Company stating that signer, all conditions precedent provided for in this Section 3.01(a5.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificatewith. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.

Appears in 1 contract

Samples: Trust Indenture and Mortgage (United Air Lines Inc)

Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. (i) Upon the occurrence of If an Event of Loss with respect occurs, Lessee shall elect as between one of the following two options (it being agreed that if it is impracticable to any Airframe restore and rebuild the Improvements in the manner required by the following clause (a), or any Airframe if Lessee shall fail to notify Lessor of its election as between the following clauses (a) and the Engines, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company shall: (Ab) forthwith within one hundred and eighty (and in any event, within five (5180) Business Days after such occurrence) give the Collateral Agent written notice days of such Event of Loss; and (B) not later than the earlier of (x) 60 days after the occurrence of such Event of Loss or (y) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Loss, give or if the Collateral Agent written notice Event of its election to perform one Loss is of the following options type described in clause (it being understood that 2), (3) and/or (4) of the failure to give such notice definition “Event of Loss”, then Lessee shall be deemed to be an election of have elected the option set forth in subclause the following clause (1) belowb)): (1a) Not later than Lessee shall restore and rebuild the earlier of Improvements in the same manner as is required under Section 14.2; or (xb) Lessee shall terminate this Lease on the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of date specified by Lessee in such Event of Loss or (y) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but notice, which date shall not be earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence of after such Event of Loss) (the applicable day being the "Loss Payment Date")notice, the Company shalland on such termination date, Lessee shall pay to Lessor all accrued and unpaid Rent to the extent not paid date of termination, shall pay to Lessor any Net Proceeds in its possession and shall assign to Lessor all of its rights in any uncollected Net Proceeds, whereupon the Collateral Agent Term shall end and the obligations of Lessee and Lessor hereunder (other than any obligations expressed herein as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect surviving termination of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent this Lease) shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreementterminate. If such insurance proceeds are less than the Insured Amount, the Company Lessor and Lessee shall pay disagree about whether a Casualty or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Condemnation constitutes an Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) same shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as the "Replacement Closing Date"), the following documents shall have been duly authorized, executed and delivered resolved by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's CertificateArbitration Procedure. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.

Appears in 1 contract

Samples: Lease Agreement (Ca, Inc.)

Event of Loss. Subject to the provisions of Section 3.01 12.3, the Lessee shall either (a) Event of Loss with Respect to an Aircraft. x), (i) Upon 1), in the occurrence case of an Event of Loss occurring on a date which is not an Expiration Date pursuant to Section 12.1(a) or (c), on the next succeeding Rent Payment Date after the Event of Loss Date, or (2) in the case of an Event of Loss occurring on a date which is not an Expiration Date pursuant to Section 12.1(b), on a date, specified on Schedule B to the relevant Funding Date Lease Supplement, occurring on or prior to the first such date which is at least 90 days after the applicable regional sales manager for the Lessee shall have received a completed accident report with respect to any Airframe such Vehicle (unless the Lessee shall have given the Lessor notice prior to the expiration of such ninety (90) day period of its intention to replace such Vehicle pursuant to clause (y) hereof), or any Airframe and (3) if the Engines, Propellers, Spare Engines and/or engines then installed on any AirframeEvent of Loss Date is the Expiration Date, the Company Lessee shall: , on the Expiration Date, pay to the Lessor an amount equal to the sum of (Ai) forthwith (and in any event, within five (5) Business Days after such occurrence) give the Collateral Agent written notice of such Termination Value for the Vehicle or Vehicles subject to the Event of Loss; and , (Bii) not later than any Rent due and payable on such payment date described in clauses (x)(1), (2) or (3), as applicable, with respect to the earlier of (x) 60 days after Vehicle or Vehicles subject to the occurrence of such Event of Loss Loss, and (iii) to the extent not theretofore paid, Rent due and payable prior to (but not on) such payment date described in clauses (x)(1), (2) or (3), as applicable, or (y) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Loss, give the Collateral Agent 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 subclause (1) below): (1) Not later than the earlier of (x) the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss or (y) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a no Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) continuing, replace the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of Vehicle suffering the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case may be, with another Eligible Vehicle of the same Manufacturer Model Year and type as Vehicle Type and having a Fair Market Sales Value not less than the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, Fair Market Sales Value of the same Manufacturer and type as the Propeller to be Vehicle being replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing assuming for this purpose that such Replacement Airframe, Replacement Engine or Replacement Propeller, as replaced Vehicle had not suffered the case may be, is Event of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, Loss and was in the condition and state of repair required by this Security Agreementthe Lease); (C) the Collateral Agent , which replacement shall have received satisfactory evidence as be made on or prior to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) 30th day after the Collateral Agent, at the expense notice of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, replacement has been made given, in which case the replacement Vehicle shall become subject to the Lien Lease and the Rent payable under the Lease shall not be reduced. Upon payment of the Security Documentsamounts specified in clauses (x)(i), that all required action has been taken in order (ii) and (iii) above, subject to maintain, and such action shall maintainthe provisions of Section 12.3, the effectiveness, perfection and priority (Lessor hereby authorizes the Lessee to transfer to the extent Lessee or the same existed immediately prior Nominee, acting on behalf of the Lessee, “as-is, where-is, with all faults,” all right, title and interest to any insurance proceeds or condemnation proceeds remaining after such payment and any salvage of the occurrence of Vehicle subject to such Event of Loss, assuming without recourse or warranty except for the Company was in compliance with all relevant terms hereof) absence of the security interests in each Lessor’s Liens and without further action such Airframeinsurance proceeds, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded condemnation proceeds and/or salvage shall cease to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.this

Appears in 1 contract

Samples: Lease Agreement (Cendant Corp)

Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. (i) Upon the occurrence of If an Event of Loss with respect to any Airframe or any Airframe and the Enginesshall occur, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company shall: (A) forthwith (and in any event, within five (5) Business Days after such occurrence) Lessee shall give the Collateral Agent Lessor prompt written notice of such Event of Loss; and (B) not later than the earlier of (x) 60 days after the occurrence of such Event of Loss or (y) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Lossoccurrence, give the Collateral Agent written notice of its election to perform and Lessee may elect one of the following options (it being understood agreed that if Lessee shall fail to notify Lessor of its election as between the failure to give such notice following clauses (i) and (ii) within one hundred and eighty (180) days after the occurrence of the Event of Loss, then Lessee shall be deemed to be an election of have elected the option set forth in subclause the following clause (1) belowi)): (1i) Not later Lessee may elect to purchase the affected Property or Properties on a date occurring not less than ten (10) days after the earlier date such election is made, for a purchase price equal to the sum of (xA) Traville Lease LEASE AGREEMENT (HGSI) Balance or the Business Day next succeeding Manufacturing Lease Balance, as applicable, in the one hundred eightieth (180th) day following the occurrence of event that such Event of Loss affected only the Traville Facility or the Manufacturing Facility or the Lease Balance in the event that such Event of Loss affected both Properties, each determined as of such Payment Date, plus, without duplication, (yB) all Rent (including, without limitation, all amounts, including Break Costs, payable under any Lessor Hedging Agreement) due and owing as of such Payment Date; or (ii) Lessee may restore and rebuild the first Interest Payment Date that is at least three (3) Business Days after receipt by affected Property or Properties so as to restore the loss payee of the insurance proceeds with respect same to their fair market value, utility, operation, residual value and remaining useful life immediately prior to such Event of Loss Loss. (but not earlier than the first Business Day next succeeding the thirtieth (30thb) day following the occurrence of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the All insurance proceeds or condemnation awards received in respect of such Event of Loss. Upon receipt of either Property shall be paid solely to Administrative Agent as sole loss payee, unless the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company $1,000,000 (provided that any insurance proceeds paid to any Person other than Administrative Agent shall pay or cause be required to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) applied in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2Sections 9.1(a) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date14. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.

Appears in 1 contract

Samples: Lease Agreement (Human Genome Sciences Inc)

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Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. (i) Upon the occurrence of If there shall occur an Event of Loss with respect to any Airframe or any Airframe the Property, Lessee shall give Lessor prompt written notice thereof and the Engines, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company shall: (A) forthwith (and in any eventelect, within five thirty (530) Business Days after such occurrence) give the Collateral Agent written notice of such Event of Loss; and (B) not later than the earlier of (x) 60 days after the occurrence of such Event of Loss or (y) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Loss, give the Collateral Agent written notice of its election to perform one of the following options (it being understood provided that the failure to give such notice shall be deemed to be an Lessee's election of the option set forth in subclause proceeding under clauses (1b) below): (1) Not later than the earlier of (x) the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss or (y) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(ic) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as the "Replacement Closing Date"), the following documents shall have been duly authorized, executed and delivered by the respective party effective only if restoration or parties thereto and shall be in full force and effect, and an executed counterpart of each thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframessubstitution, as the case may be, can be completed by the time specified in such clauses (b) and (c)): (a) Offer to purchase the Property from Lessor, on a date specified in such notice, which date shall be a date for which a value is set forth on Schedule 12.01 hereto (the "Termination Value Date") occurring not less than ninety (90) days and not not than one hundred fifty (150) days after the date of such Event of Loss, for a purchase price equal to the sum of (i) the Termination Value for the Property, determined as of such Termination Value Date, plus (ii) all unpaid Rent with respect to the Property due and (without duplication) all Rent with respect to the Property accruing, but unpaid through such Termination Value Date, plus (iii) an amount equal to the reasonable out-of-pocket expenses of any Indemnitee relating to the purchase, if any, by Lessee as a result of such Event of Loss including reasonable attorneys' fees and costs actually incurred. Lessor shall have sixty (60) days from the date of receipt of Lessee's offer to decide whether to reject such offer, otherwise Lessor shall be deemed to have accepted such offer; (b) Restore and rebuild the Improvements and Fixtures and repair and replace the Equipment damaged or destroyed as a result of such Event of Loss so as to have at least a value, utility, condition, operating function and remaining useful life equal to the value, utility, condition, operating function and remaining useful life of the same Manufacturer Property immediately prior to such Event of Loss (assuming compliance with this Lease), and type in all events in the condition required by Section 8.02, such restoration and replacement to be completed the earlier to occur of (x) the first anniversary of the Event of Loss, or (y) six months prior to the expiration of the Lease Term (and Lessee shall remain liable for the completion of such restoration beyond the expiration of the Lease Term to the extent not completed prior to such expiration and shall pay Base Rent (or Renewal Rent as the Engine case may be) and Supplemental Rent with respect to the Property from the date of expiration to the date of completion); or (c) Offer to substitute for the Property a Substitute Property in compliance with Article XXIII, such substitution to be replaced completed within the earlier of (A) one hundred eighty (180) days after an Event of Loss and each Replacement Propeller (B) six months prior to the expiration of the Lease Term. Upon consummation of the substitution under Article XXI, Net Proceeds, if any, relating to the Withdrawn Property shall be paid to or retained by Lessee. Lessor shall have thirty (30) days from the propeller applicable date of receipt of Lessee's offer to accept such offer, if such offer is not accepted within such time period, then Lessor shall be deemed to have rejected such offer and Lessee shall proceed under clauses (a) or (b). If Lessee makes an offer to purchase pursuant to clause (a) above of this Section 12.01, and Lessor accepts such offer or is deemed to accept such offer (taking into account the last sentence of Section 12.01(a)) within the sixty (60) day period referred to in the last sentence of clause (a) above, Lessee shall pay to Lessor the Termination Value and Rent described in said clause (a) not later than the Termination Value Date; provided that any Net Proceeds related to the Property then held by Lessor (or its assignee or designee) shall be credited against the portion of such Termination Value payable to Lessor and the balance of Net Proceeds, if any, shall be paid to or retained by Lessee. Concurrently with the payment in full of the amounts payable pursuant to said clause (a), the terms of Article XIII shall be complied with. In the event Lessee has made the election described in either (b) or (c) above and, notwithstanding diligent efforts in good faith, has failed to comply with terms thereof within the periods described, then Lessee shall be deemed to have made the offer described in (a) above to purchase the Property and the Termination Value Date shall be deemed to be the next succeeding date set forth on Schedule 12.01 occurring thirty (30) days after the expiration of the period described in (b) or (c) (as applicable), or if there is no such date, the last date on Schedule 12.01, as the case may be. In the event Lessor rejects the offer of Lessee to purchase the Property as provided in clause (a) of this Section 12.01, the following amount shall be paid to or retained by Lessor on such Termination Value Date: (A) all Net Proceeds related to the Property; provided that, if Lessee is self-insured (as permitted above) by means of deductibles, retained risks or no insurance whatsoever, Lessee shall pay such amounts and any additional amounts so that Lessor receives in total (including any Net Proceeds) an amount that would have been paid by a third-party insurer under a customary commercial all-risk full replacement-value insurance policy substantially similar to that described in Schedule 9.01 without deductibles or retained risks replacement value of the Improvements immediately preceding the Event of Loss, shall be as mutually agreed between Lessee and Lessor and, failing such agreement within fifteen (15) days of the request of either party to do so, by the Appraisal Procedure), plus (B) unpaid Rent due with respect to the Property on such Termination Value Date. Upon payment in full of the amounts set forth in clauses (A) and (B) of the preceding sentence (in the event Lessor rejected Lessee's offer) or clause (a) of the first sentence of this Section 12.01 (in the event Lessor accepted Lessee's offer to purchase), (1) the Lease Term shall end, and (2) the obligations of Lessee hereunder (other than any obligations expressed herein as surviving termination of this Lease) with respect to such engine Property shall terminate as of the date of such payment. If Lessor elects to reject the offer of Lessee hereunder to purchase the Property pursuant to this Section 12.01 while the Indebtedness under the Debt Documents is outstanding or enginesthe Head Lease has not expired by its terms of otherwise been terminated, any notice of rejection shall only be effective, and Lessor shall only be entitled to reject such offer, if such notice is concurrently consented to in writing by the Agent on behalf of the Holders or by the Head Lessor or both the Agent and the Head Lessor, as the case may be, and absent such required consent by the applicable Persons within the sixty (60) day period referred to in the last sentence of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframeclause (a) above, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted Lessor shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined hereinhave accepted Lessee's offer.

Appears in 1 contract

Samples: Lease Agreement (Dollar General Corp)

Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. (i) Upon the occurrence of If there shall occur an Event of Loss with respect to any Airframe all or any Airframe a portion of the Property (the “Affected Property"), Lessee shall give Lessor prompt written notice thereof and elect, within sixty (60) days after the Enginesoccurrence of the Event of Loss, Propellersone of the following options (provided that Lessee's election of proceeding under Section 12.l(a)(ii) below shall be effective only if restoration can be completed by the time specified in such clause (ii)): (i) Offer to purchase the Affected Property from Lessor, Spare Engines and/or engines then installed on any Airframea Rent Payment Date, which is the Company shall: first Rent Payment Date at least ninety (90) days after Lessor accepts such offer (such Rent Payment Date being referred to herein as the "Purchase Date"), for a purchase price equal to the sum of (A) forthwith the Stipulated Loss Value for the Affected Property, plus {B) all unpaid Rent with respect to the Affected Property due and (and in any eventwithout duplication) all Rent with respect to the Affected Property accruing, within five but unpaid through such Purchase Date, plus (5C) Business Days after such occurrence) give an amount equal to the Collateral Agent written notice reasonable out of pocket expenses of Lessor relating to the purchase, if any, by Lessee as a result of such Event of Loss; and , including reasonable attorneys' fees and costs actually incurred. Lessor shall have sixty (B60) days from the date of receipt of Lessee's offer to decide whether to reject such offer. If Lessee has not received a response after forty (40) days, it may send a second notice to the foregoing parties, stating clearly in a legend to such notice that failure to reject such offer by the later than the earlier of (x) 60 the original sixty (60) day period, or (y) ten (10) days after delivery of such second notice, Lessor shall be deemed to have accepted such offer; or (ii) Restore and rebuild the occurrence Improvements damaged as a result of such Event of Loss or (y) the fifth (5th) Business Day following notification so that such Improvements will have a value, utility and remaining economic life as nearly as reasonably practicable equal to the Company of receipt by the loss payee value, utility and remaining economic life of the insurance proceeds with respect Improvements immediately prior to such Event of Loss, give and in all events as required by Section 8.2, such restoration to be substantially completed, subject to force majeure, by the Collateral Agent written notice earlier to occur of its election to perform one (x) the twenty-fourth (24th) month anniversary of the following options Event of Loss, or (it y) three (3) months prior to the expiration of the Lease Term (such earlier date being understood referred to herein as the "Restoration Deadline Date") and Lessee shall remain liable for the completion of such restoration beyond the expiration of the Lease Term to the extent not completed prior to such expiration and shall pay Base Rent and Supplemental Rent with respect to the Affected Property from the date of expiration to the date of completion. Lessee shall be entitled to retain all insurance proceeds or condemnation awards in the event Lessee elects to proceed pursuant to this Section 12.1(a)(ii). (b) If Lessee makes an offer to purchase pursuant to Section 12.l(a)(i) above, and Lessor accepts such offer or is deemed to accept such offer within the sixty (60) day period referred to in the last sentence of Section 12.l(a)(i), the conveyance shall occur, and Lessee shall pay to Lessor the Stipulated Loss Value, Rent and other amounts described in said Section 12.l(a)(i) on the Purchase Date; provided that any Net Proceeds related to the Affected Property previously distributed to Lessor shall be credited against the portion of such purchase price payable to the Lessor and the balance of Net Proceeds, if any, shall be paid to Lessee. Concurrently with the payment in full of the amounts payable pursuant to said Section 12.l (a)(i), the terms of Article 13 shall be complied with. (c) In the event Lessee has made the election described in Section 12.l(a)(ii) above but, notwithstanding diligent efforts in good faith, has failed to comply with terms thereof by the Restoration Deadline Date, then Lessee shall be deemed to have made the offer described in Section 12.l(a)(i) above on the Restoration Deadline Date to purchase the Affected Property; provided, however, in the event Lessee has elected to proceed pursuant to Section 12.l(a)(ii) above, and has not completed restoration as required therein within the time frame set forth in subclause (x) thereof, Lessee may elect, within ten (l0) days of expiration of such period, in lieu of being deemed to make the offer described in Section 12.l(a)(i) above, to continue to elect to proceed pursuant to Section 12.l(a)(ii) above, upon which election (even if restoration is not completed until after the expiration of the Term, in which event, the Term shall be deemed extended on the same terms as are in effect immediately prior to the expiration, until such time as restoration has been completed), Lessee's rights to use and occupy the Property shall continue unimpaired, subject to Lessee's continued payment of Rent and Supplemental Rent on the entire Property. Such election shall require Lessee to pay to Lessor, within thirty (30) days of demand therefor, an amount equal to all tax benefits lost by Lessor by virtue of the Improvements not being substantially complete and in service (for depreciation purposes) from the expiration date of the period set forth in Section 12.l(a)(ii)(x) above until the date the Improvements are substantially complete and in service (for depreciation purposes), grossed up to reflect the federal (and state and local, if applicable) Taxes payable by Lessor (at the highest marginal rate applicable to an entity such as Lessor) on such amount, so that the failure net effect to give Lessor will be to receive all the economic benefits it would have received had the Improvements been repaired and restored on time. If Lessee has not completed restoration in accordance with this Section 12.l(c) by six (6) months prior to the expiration of the Lease Term, then such notice non-completion shall be deemed to be an election a Lease Event of Default hereunder. (d) In the event Lessor rejects the offer of Lessee to purchase the Affected Property as provided in Section 12.l (a)(i), then, at Lessee's option in its sole discretion, this Lease shall terminate and the following amount shall be paid to Lessor as of the option set forth effective date of the termination of this Lease: (A) Stipulated Loss Value, plus (B) unpaid Rent due with respect to the Affected Property as of the effective date of the termination of this Lease. If Lessor rejects Lessee's offer to purchase the Property and Lessee elects, in subclause its sole discretion, to terminate this Lease, then any Net Proceeds, including those previously distributed to Lessor, shall be paid to Lessee. If Lessee does not elect, in its sole discretion, to terminate this Lease as provided above, then Lessee shall elect to proceed under Section 12.l (1a) below): (1ii) Not later than above. For purposes of this Section 12.l (d), the effective date of the termination of this Lease shall be the earlier of (xI) the Business Day next succeeding date that is ninety (90) days after Lessor rejects Lessee's offer to purchase the one hundred eightieth (180th) day following the occurrence of such Event of Loss Affected Property or (yII) the first Interest Payment Date that is at least three (3) Business Days after receipt by date which, but for the loss payee casualty, would have been the date of expiration or earlier termination of the insurance proceeds Term. (e) Upon payment in full of the amounts set forth in clauses (A) and (B) of subsection (d) above (in the event Lessor rejected Lessee's offer to purchase) or the first sentence of Section 12.l(a)(i) (in the event Lessor accepts Lessee's offer to purchase), (1) the Lease Term shall end, and (2) the obligations of Lessee hereunder (other than any obligations expressed herein as surviving termination of this Lease) with respect to such Event Affected Property shall terminate as of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence date of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such datepayment. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.

Appears in 1 contract

Samples: Lease Agreement (Griffin Capital Essential Asset REIT II, Inc.)

Event of Loss. Section 3.01 (a) Event of Loss with Respect to an Aircraft. Any event (i) Upon which would otherwise constitute ------------- a Casualty during the occurrence Base Term, and (ii) which, in the good-faith judgment of an Event Lessee, renders repair and restoration of Loss with respect the Leased Property impractical or uneconomical, and (iii) as to any Airframe or any Airframe and the Engines, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company shall: (A) forthwith (and in any eventwhich Lessee, within five sixty (560) Business Days after such occurrence) give the Collateral Agent written notice of such Event of Loss; and (B) not later than the earlier of (x) 60 days after the occurrence of such event, delivers to Lessor an Officer's Certificate notifying Lessor of such event and of such judgment, shall constitute an "Event of Loss". ------------- In the case of any other event which constitutes a Casualty, Lessee shall restore the Leased Property pursuant to Section 10.3. If an Event of Loss or other ------------ than an Event of Taking shall occur, Lessee shall pay to Lessor on the next Payment Date following delivery of the Officer's Certificate pursuant to clause ------ (yiii) the fifth (5th) Business Day following notification above an amount equal to the Company Lease Balance. Upon Lessor's receipt of receipt by such ----- Lease Balance on such date, Lessor shall cause Lessor's interest in the loss payee of the insurance proceeds with respect to such Event of Loss, give the Collateral Agent 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 Leased Property to be an election of the option set forth in subclause (1) below): (1) Not later than the earlier of (x) the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss or (y) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect conveyed to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment Lessee in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2) Not later than the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of Loss, the Company shall substitute an aircraft (together with engines and, if applicable, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) 14.5 hereof; upon completion of such purchase, but not ------------ prior thereto, this Lease and all obligations hereunder shall terminate, except with respect to obligations and liabilities hereunder, actual or contingent, that have arisen or relate to events occurring on or prior to such date of purchase, or which are expressly stated herein to survive termination of this Lease. Upon the consummation of the Loan Agreement, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien purchase of the Security Documents such Aircraft by executing and delivering Leased Property pursuant to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedent: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as the "Replacement Closing Date")10.1, 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents proceeds derived from insurance required to be filed or delivered maintained ------------ by Lessee pursuant to this Lease for the laws Leased Property remaining after payment of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe purchase price shall be one paid over to, or more airframesretained by, shall be of the same Manufacturer and type Lessee or as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case it may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintaindirect, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent Lessor shall assign to the Company Lessee, without warranty, all claims it may have against any other Person relating of Lessor's rights to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all interest in insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed required to be subjected maintained by Lessee pursuant to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined hereinthis Lease.

Appears in 1 contract

Samples: Master Agreement (Sterling Commerce Inc)

Event of Loss. Section 3.01 (a) If an Event of Loss with Respect shall occur (other than an Event of Loss described in Section 14.1(b) below), Lessee shall give Lessor prompt written notice of such occurrence, and Lessee may elect one of the following options (it being agreed that if Lessee shall fail to an Aircraft.notify Lessor of its election as between the following clauses (i) and (ii) within one hundred and eighty (180) days after the occurrence of the Event of Loss, then Lessee shall be deemed to have elected the option set forth in the following clause (i)): (i) Upon Lessee may elect to purchase Lessor's Interests on a date occurring not less than ten (10) days after the occurrence date such election is made, for a purchase price equal to the sum of (A) Lease Balance, determined as of such Payment Date, plus, without duplication, (B) all Rent due and owing as of such Payment Date; or (ii) Lessee may restore and rebuild the Properties so as to restore the same to their fair market value, utility and useful life immediately prior to such Event of Loss. (b) If an Event of Loss with respect to any Airframe of the type described in clause (y) or any Airframe and (z) of the Enginesdefinition "Event of Loss" shall occur, Propellers, Spare Engines and/or engines then installed on any Airframe, the Company shall: (A) forthwith (and in any event, within five (5) Business Days after such occurrence) Lessee shall give the Collateral Agent Lessor prompt written notice of such Event occurrence, and Lessee may elect one of Loss; and the following options (Bit being agreed that if Lessee shall fail to notify Lessor of its election as between the following clauses (i) not later than the earlier of and (xii) 60 within one hundred and eighty (180) days after the occurrence of such Event of Loss or (y) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Loss, give the Collateral Agent written notice of its election to perform one of the following options (it being understood that the failure to give such notice then Lessee shall be deemed to be an election of have elected the option set forth in subclause the following clause (1) belowi)): (1i) Not later Lessee may elect to purchase Lessor's Interests on a date occurring not less than ten (10) days after the earlier date such election is made, for a purchase price equal to the sum of (xA) the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence Lease Balance, determined as of such Event of Loss or Payment Date, plus, without duplication, (yB) the first Interest Payment Date that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) day following the occurrence all Rent due and owing as of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company shall, to the extent not paid to the Collateral Agent as insurance proceeds, pay or cause to be paid to the Collateral Agent the insurance proceeds in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds; or (2ii) Not later than Lessee may pay the Business Day next succeeding the one hundred eightieth (180th) day following the occurrence of such Event of LossPermitted Lease Balance and all other amounts otherwise then due and owing, the Company shall substitute an aircraft (which, together with engines andthe condemnation proceeds and any sales proceeds from the sale of the remaining portion of the Properties, if applicable, propellers installed thereon) shall be distributed in accordance with Article X of the terms hereof subject Participation Agreement. Lessee shall have the right to act as exclusive agent for Lessor in connection with any such sale of the remaining portion of the Properties. Lessee, as exclusive agent for Lessor, shall attempt to sell Lessor's Interests to the provisions of Section 2.6(c) of Person submitting the Loan Agreementcash bid that will result in the highest Net Sale Proceeds, provided that if (x) a Specified Default or Event of Default shall have occurred and be continuing as of such election date or (y) the Company shall have elected to make a substitution under this clause (2) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company shall make the payments required by clause (1) above on such date. (ii) At such time as the Company shall have complied fully with the provisions of clause (1) above, the Collateral Agent shall release from the Lien of the Security Documents such Aircraft by executing and delivering to the Company all documents and instruments, prepared at the Company's sole cost and expense, as the Company may reasonably request to evidence such release. (iii) The Company's right to substitute any Replacement Airframe, Replacement Engine and Replacement Propeller as provided in Clause (B)(2) of Section 3.01(a)(i) shall be subject to the fulfillment, at the Company's sole cost and expense, of the following conditions precedentthat: (A) on the date when any Replacement Airframe, Replacement Engine and Replacement Propeller is subjected to the Lien of the Security Documents (such date being referred to in this Section 3.01 as 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 thereof shall have been delivered by the Company to the Collateral Agent: (I) a Security Agreement Supplement (Aircraft) covering each such Replacement Airframe, Replacement Engine and Replacement Propeller shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such Replacement Airframe, Replacement Engine and Replacement Propeller is to be registered in accordance with Section 2.01(a)(iii), as the case may be; and (II) UCC financing statements (and any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such Replacement Airframe, Replacement Engine and Replacement Propeller, may be registered in accordance with Section 2.01(a)(iii)) as may be necessary or advisable to protect the security interests of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller; (B) each Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer and type as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured and each Replacement Engine shall be the engine applicable to such airframe or airframes, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine and Replacement Propeller, dated within ten (10) Business Days of the Replacement Closing Date, evidencing that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was in the condition and state of repair required by this Security Agreement); (C) the Collateral Agent shall have received satisfactory evidence as to the compliance with Section 2.04 with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller; (D) the Collateral Agent, at the expense of the Company, shall have received (acting directly or by authorization to its special counsel) (I) an opinion of counsel to the Company (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, to the effect that each Replacement Airframe, Replacement Engine and Replacement Propeller, if any, has been made subject to the Lien of the Security Documents, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company was in compliance with all relevant terms hereof) of the security interests in each such Airframe, Engine and Propeller and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, the protections afforded to the Collateral Agent by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company was in compliance with all relevant terms hereof) and (II) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), addressed to the Collateral Agent, as to, in the case of FAA counsel, the due recordation of the Security Agreement Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent in each such Replacement Airframe, Replacement Engine and Replacement Propeller or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (F) the Collateral Agent shall have received an Officer's Certificate of the Company stating that all conditions precedent provided for in this Section 3.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificate. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.

Appears in 1 contract

Samples: Lease Agreement (Goldman Sachs Group Inc)

Event of Loss. Section 3.01 5.01 (a) Event of Loss with Respect to an the Aircraft. (i) . Upon ------------------------------------------ the occurrence of an Event of Loss with respect to any the Airframe or any the Airframe and the Engines, Propellers, Spare Engines and/or engines then installed on any Airframethereon, the Company shall: Owner shall (A1) forthwith (and in any event, within five (5) Business Days fifteen days after such occurrence) give the Collateral Agent Indenture Trustee written notice of such Event of Loss; and Loss and (B2) not later than the earlier of (x) within 60 days after the occurrence of such Event of Loss or (y) the fifth (5th) Business Day following notification to the Company of receipt by the loss payee of the insurance proceeds with respect to such Event of Lossoccurrence, give the Collateral Agent 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 subclause clause (1i) below): (1i) Not later than the earlier of (x) the first Business Day next succeeding the one hundred eightieth (180th) 100th day following the occurrence of such Event of Loss or (y) the first Interest Payment Date [Trust Indenture and Mortgage ([_________])] Business Day that is at least three (3) Business Days after receipt by the loss payee of the insurance proceeds with respect to such Event of Loss (but not earlier than the first Business Day next succeeding the thirtieth (30th) 65th day following the occurrence of such Event of Loss) (the applicable day being the "Loss Payment Date"), the Company Owner shall, to the extent not paid to the Collateral Agent Indenture Trustee as insurance proceeds, pay or cause to be paid to the Collateral Agent Indenture Trustee an amount sufficient to satisfy the insurance proceeds Owner's obligations under Section 6.01(a)(i) and to redeem the Notes as provided in respect of such Event of Loss. Upon receipt of the insurance proceeds from the Company or the relevant insurance provider, the Collateral Agent shall apply such insurance proceeds on behalf of the Company as a prepayment in accordance with Section 2.6(c) of the Loan Agreement. If such insurance proceeds are less than the Insured Amount, the Company shall pay or cause to be paid to the Collateral Agent the difference between the Insured Amount and the amount of such proceeds6.01(a)(ii); or (2ii) Not later than the first Business Day next succeeding the one hundred eightieth (180th) 100th day following the occurrence of such Event of Loss, the Company Lessee shall substitute an aircraft (together with engines andor an airframe or an airframe and one or more engines, if applicableas the case may be, propellers installed thereon) in accordance with the terms hereof subject to the provisions of Section 2.6(c) of the Loan Agreementhereof, provided that if (xA) a Specified Default or an Indenture Event of Default (other than as a direct result of such Event of Loss) shall have occurred and be continuing as of such election date or (yB) the Company Lessee shall have elected to make a substitution under this clause (2ii) and shall fail for any reason to make such substitution in accordance with the terms hereof, then the Company Lessee shall make the payments required by clause (1i) above on such date. (ii) . At such time as the Company Lessor shall have complied fully with received the provisions sum of the amounts specified in clause (1i) above, the Collateral Agent Indenture Trustee shall release from the Lien of this Agreement the Security Documents such Aircraft by executing and delivering to the Company Owner all documents and instruments, prepared at the Company's sole cost and expense, instruments as the Company Owner may reasonably request to evidence such release. (iii) . The CompanyOwner's right to substitute any a Replacement Airframe, Replacement Engine Airframe and Replacement Propeller Engines, if any, as provided in Clause (B)(2) of Section 3.01(a)(i5.01(a)(ii) shall be subject to the fulfillment, at the CompanyOwner's sole cost and expense, of the following to conditions precedent: (Ai) on the date when any the Replacement Airframe, Replacement Engine Airframe and Replacement Propeller Engines, if any, is subjected to the Lien of the Security Documents this Agreement (such date being referred to in this Section 3.01 5.01 as 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 thereof (or, in the case of the FAA Xxxx of Sale and full warranty xxxx of sale referred to below, a photocopy thereof) shall have been delivered by the Company to the Collateral AgentIndenture Trustee: (IA) a Security Agreement an Indenture Supplement (Aircraft) covering each such the Replacement Airframe, Replacement Engine Airframe and Replacement Propeller Engines, if any, which shall have been duly filed for recordation pursuant to the Federal Aviation Act or such other applicable law of such jurisdiction other than the United States in which each such the Replacement Airframe, Replacement Engine Airframe and Replacement Propeller is Engines, if any, are to be registered in accordance with Section 2.01(a)(iii4.01(a)(3), as the case may be; (B) an FAA Xxxx of Sale (or a comparable document, if any, of another aviation authority, if applicable) covering the Replacement Airframe and [Trust Indenture and Mortgage ([_________])] Replacement Engines, if any, executed by the former owner thereof in favor of the Owner; (C) a full warranty (as to title) xxxx of sale, covering the Replacement Airframe and Replacement Engines, if any, executed by the former owner thereof in favor of the Owner (or, at the Owner's option, other evidence of the Owner's ownership of such Replacement Airframe and Replacement Engines, if any, reasonably satisfactory to the Indenture Trustee); and (IID) UCC Uniform Commercial Code financing statements (and or any similar statements or other documents required to be filed or delivered pursuant to the laws of the jurisdiction in which each such the Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngines, if any, may be registered in accordance with Section 2.01(a)(iii4.01(a)(3)) as may be are deemed necessary or advisable desirable by counsel for the Indenture Trustee to protect the security interests of the Collateral Agent Indenture Trustee in each such the Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngines, if any; (Bii) each the Replacement Airframe shall be one or more airframes, shall be of the same Manufacturer or an improved make and type model as the Aircraft (unless consented to by the Collateral Agent) and shall have been manufactured by the Manufacturer in or after the year that the Aircraft subject of the Event of Loss was manufactured Airframe replaced and each Replacement Engine shall be the engine applicable to such airframe or airframesan Acceptable Alternate Engine, as the case may be, of the same Manufacturer and type as the Engine to be replaced and each Replacement Propeller shall be the propeller applicable to such engine or engines, as the case may be, of the same Manufacturer and type as the Propeller to be replaced and the Collateral Agent shall have received an Appraisal Report from an Appraiser of each such Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngines, dated within ten if any, have a value and utility (10with respect to Engines, without regard to hours or cycles) Business Days of at least equal to, and be in as good operating condition and repair as, the Replacement Closing Date, evidencing Airframe and any Engines replaced (assuming that such Replacement Airframe, Replacement Engine or Replacement Propeller, as the case may be, is of at least the same value as the original Airframe, Engine or Propeller, as the case may be, at the time of replacement (assuming the original Airframe, Engine or Propeller, as the case may be, was Airframe and Engines were in the condition and state of repair required by this Security Agreement)the terms hereby) as evidenced by a certificate of an aircraft engineer (who may be an employee of the Owner) or an appraisal from an independent aircraft appraiser; (Ciii) the Collateral Agent Indenture Trustee (acting directly or by authorization to its special counsel) shall have received satisfactory evidence as to the compliance with Section 2.04 4.03 with respect to each such the Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngines, if any; (Div) the Collateral Agent, Indenture Trustee at the expense of the CompanyOwner, shall have received (acting directly or by authorization to its special counsel) (IA) an opinion of counsel to the Company Owner (which opinion and counsel shall may be reasonably satisfactory to the Collateral AgentOwner's General Counsel), addressed to the Collateral AgentIndenture Trustee, to the effect that each the Replacement Airframe, Replacement Engine Airframe and Replacement PropellerEngine, if any, has or have duly been made subject to the Lien of the Security Documentsthis Agreement, that all required action has been taken in order to maintain, and such action shall maintain, the effectiveness, perfection effectiveness and priority (to the extent the same existed immediately prior to the occurrence of such Event of Loss, assuming the Company Owner was in compliance with all relevant terms hereof) of the security interests in each such the Airframe, Engine and Propeller the Engines and title thereto created by this Security Agreement and that, except as may have been effected by a change in law, that the protections afforded to the Collateral Agent Indenture Trustee by Section 1110 of the Bankruptcy Code will not be less than such protections immediately prior to the occurrence of such Event of Loss (assuming the Company Owner was in compliance with all relevant terms hereof) and (IIB) an opinion of qualified FAA counsel (or counsel in any jurisdiction outside the United States where the Aircraft may be registered in accordance with Section 2.01(a)(iii4.01(a)(3)) (which opinion and counsel shall be reasonably satisfactory to the Collateral Agent), [Trust Indenture and Mortgage ([_________])] addressed to the Collateral AgentIndenture Trustee, as to, in the case of FAA counsel, the due recordation of the Security Agreement Indenture Supplement (Aircraft) and all other documents or instruments the recordation of which is necessary to perfect and protect the rights of the Collateral Agent Indenture Trustee in each such the Replacement Airframe, Replacement Engine Airframe and Replacement Propeller Engines, if any, or, in the case of counsel in another jurisdiction, the taking of all action necessary in such jurisdiction for such purposes; (E) the representation contained in Section 4.6 of the Loan Agreement with respect to each such Replacement Airframe, Replacement Engine and Replacement Propeller shall be true and correct; and (Fv) the Collateral Agent Indenture Trustee (acting directly or by authorization to special counsel) shall have received an Officerofficer's Certificate certificate of Owner stating that, in the opinion of the Company stating that signer, all conditions precedent provided for in this Section 3.01(a5.01(a) relating to such replacement have been complied with and representing that any such Replacement Engine or Replacement Propeller is an Acceptable Alternate Engine or Acceptable Alternate Propeller, as applicable, and authorizing the Collateral Agent to rely on such Officer's Certificatewith. (iv) Upon satisfaction of all conditions to such substitution, (A) the Collateral Agent shall execute and deliver to the Company such documents and instruments, prepared by the Company at the Company's sole cost and expense, as the Company shall reasonably request to evidence the release of each such replaced Airframe, Engine, Propeller or Spare Engine from the Lien of the Security Documents, (B) the Collateral Agent shall assign to the Company all claims it may have against any other Person relating to any Event of Loss giving rise to such substitution and (C) subject to Section 2.6(c) of the Loan Agreement, the Company shall receive all insurance proceeds and proceeds in respect of any Event of Loss giving rise to such replacement. For all purposes hereof, the property so substituted shall be deemed to be subjected to the Lien of the Security Documents and shall be deemed an "Aircraft", "Airframe", "Engine" or "Propeller", as the case may be, as defined herein.

Appears in 1 contract

Samples: Trust Indenture and Mortgage (United Air Lines Inc)

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