Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee: (i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof; (ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x); (iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i); (iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture; (v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof; (vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF; (vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement; (viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;
Appears in 8 contracts
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/), Trust Indenture and Mortgage (Continental Airlines Inc /De/), Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Possession. The Owner, without the prior consent of Mortgageethe Indenture Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgageethe Indenture Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by the Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if the Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and the Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by the Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to the Owner or such Permitted Lessee, or purchased by the Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) the Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by the Owner or such Permitted Lessee, leased to the Owner or such Permitted Lessee, or purchased by the Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and the Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event the Owner shall promptly notify Mortgagee the Indenture Trustee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) To the extent permitted by Section 4.04(c) hereof, subject any appliances, Parts or other equipment owned by the Owner and removed from the Airframe, or any Engine, to any pooling arrangement referred to in Section 4.04(c) hereof;
(viii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viiiix) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) the Owner shall have furnished Mortgagee the Indenture Trustee with a favorable opinion of counsel, reasonably satisfactory to Mortgageethe Indenture Trustee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee the Indenture Trustee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's the Indenture Trustee’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless the Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee or Permitted Lessee who receives possession by reason of a transfer permitted by any of clauses (i) through (ix) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will comply with the notice requirement of Section 6.1.5 of the Participation Agreement and will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Indenture Trustee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) the Owner shall provide written notice to the Indenture Trustee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) the Owner shall furnish to the Indenture Trustee evidence reasonably satisfactory to the Indenture Trustee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of the Indenture Trustee in the Aircraft, Airframe and Engines; and (z) the Owner shall reimburse the Indenture Trustee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by the Indenture Trustee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Indenture Trustee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Any Wet Lease or similar arrangement under which the Owner maintains operational control of the Aircraft shall not constitute a deliver, transfer or relinquishment of possession of the Aircraft for purposes of this Section. The Indenture Trustee hereby agrees, and each Note Holder and Related Note Holder by acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, the Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that the Indenture Trustee, each Note Holder and Related Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 7 contracts
Samples: Trust Indenture and Security Agreement, Trust Indenture and Security Agreement (Us Airways Inc), Trust Indenture and Security Agreement (Us Airways Inc)
Possession. The Owner, without Without the prior written consent of MortgageeLoan Trustee, Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided that Company (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements interchange, pooling, borrowing or pooling other similar agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part to (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine terms hereof or (y) to any Person for the purpose purposes of transport to a Person referred to in the preceding clause (x);
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or any Engine to the CRAF Program or transfer possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that Company (or any Permitted Lessee Lessee) (A) shall promptly notify Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange, pooling, borrowing or other similar agreements or arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a lease, conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as the case may be, shall have received either: (1) Company has obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form satisfactory to Loan Trustee (an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee), leased to Owner Company (or such any Permitted Lessee, ) or purchased by Owner Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation adversely affects Loan Trustee’s security interest in such Engine, Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Company with Section 7.05(b);
(viviii) Transfer lease any Engine, the Airframe or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; provided that no Event of Default exists at the time such lease is entered into; and
(ix) lease any Engine, the Airframe or the Airframe and Engines to (A) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (B) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) and (C) any foreign air carrier consented to in writing by Loan Trustee with the U.S. Governmentconsent of a Majority in Interest of Noteholders; provided that (w) no Event of Default exists at the time such lease is entered into, (x) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains normal diplomatic relations with the country in which event Owner shall promptly notify Mortgagee such foreign air carrier is based at the time such lease is entered into and in writing the case of a lease to a foreign air carrier principally based in Taiwan, the United States maintains diplomatic relations with Taiwan at least as good as those on the Closing Date, (y) in the case of a lease to any foreign air carrier, Company furnishes Loan Trustee with a certificate from a Responsible Officer of Company certifying that there exist no possessory rights in favor of such lessee under the laws of such lessee’s country which would, upon bankruptcy or insolvency of or other default by Company, and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Sections 7.02(b) and (c) or (y) permit any action not permitted to be taken by Company with respect to the Aircraft hereunder. Company shall promptly notify Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. Loan Trustee, each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note agrees, for the benefit of Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to Company (or any Permitted Lessee) or leased to or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that Loan Trustee, Noteholders and Related Noteholders will not acquire or claim, as against Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in: (A) any engine or engines owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement, or (B) any airframe owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such lease or conditional sale or other security agreement. Loan Trustee acknowledges that any “wet lease” or other similar arrangement under which Company (or any Permitted Air Carrier under applicable law;Lessee) maintains operational control of the Aircraft does not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 7 contracts
Samples: Indenture and Security Agreement (Delta Air Lines, Inc.), Indenture and Security Agreement (Delta Air Lines, Inc.), Indenture and Security Agreement (Delta Air Lines, Inc.)
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Loan Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Loan Trustee:
(i) Subject subject, or permit any Permitted Lessee to subject (i) subject, the Airframe to normal interchange agreements or (ii) any subject such Engine to normal interchange agreements interchange, pooling, borrowing or pooling other agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company or such Permitted Lessee, as the case may be, Lessee in the ordinary course of its business; PROVIDED, HOWEVER, provided that if Owner's the Company’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver deliver, or permit any Permitted Lessee to deliver deliver, possession of the Aircraft, Airframe, any Airframe or such Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, maintenance or reconditioning, restoration, storage, maintenance, overhaul work on or other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine terms hereof or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install transfer or permit the transfer of possession of the Airframe or such Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject, or permit any Permitted Lessee to install subject, the Airframe or such Engine to the CRAF Program or transfer possession of the Airframe or such Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that the Company (A) shall promptly notify the Loan Trustee upon transferring possession of the Airframe or such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install, or permit any Permitted Lessee to install, an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install, or permit any Permitted Lessee to install, an Engine on an airframe leased, purchased or owned by the Company (or any Permitted Lessee) subject to a lease, conditional sale and/or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or any conditional sale or security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Loan Trustee (it being understood that an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, in such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding the installation thereof on such airframe;
(vvii) Install install, or permit any Permitted Lessee to install install, an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of , if such installation shall adversely affect the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, Loan Trustee’s security interest in such notification shall identify Engine, the Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement Company with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunderSection 7.05(b); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So lease such Engine or the Airframe and Engines to any United States air carrier as to which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. §§41101-41112) or successor provision that gives like authority, or to any manufacturer of airframes or engines (or an Affiliate thereof acting under an unconditional guarantee of such manufacturer), so long as such manufacturer and, if applicable, such Affiliate is domiciled in the United States); provided that no Event of Default shall have occurred exist at the time any such lease is entered into; and
(ix) lease such Engine or the Airframe and be continuing, and subject Engines to (A) any foreign air carrier that is at the provisions inception of the immediately following paragraphlease based in and a domiciliary of a country listed in Exhibit B hereto, enter into (B) any foreign manufacturer of airframes or engines (or a foreign Affiliate of a United States or foreign manufacturer of airframes or engines acting under an unconditional guarantee of such manufacturer), so long as such foreign manufacturer or (if applicable) foreign Affiliate is domiciled in a country indicated with an asterisk on Exhibit B hereto, or (C) any foreign air carrier consented to in writing by the Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (x) in the case of a lease to, or guarantee by, any entity pursuant to this Section 7.02(a)(ix), (1) other than a foreign carrier principally based in Taiwan, the United States maintains diplomatic relations with respect to the Aircraftcountry in which such entity is based and domiciled at the time such lease is entered into, Airframe or any Engine to any Permitted Air Carrier that (2) no Event of Default exists at the time such lease is entered into and (3) such entity is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, and (y) in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and any foreign manufacturer or foreign Affiliate under clause (B) Owner above, the re-registration conditions set forth in Section 7.02(e) shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory be satisfied notwithstanding anything to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business contrary in such jurisdiction, if not already so registered clause (B); provided that the rights of any lessee or qualified, as a result, in whole or in part, other transferee who receives possession of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including the Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and Section 7.02(c) or (y) permit any action not permitted to be taken by the Company with respect to the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. The Loan Trustee, and each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note, agrees, for the benefit of the Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to the Company (or any Permitted Lessee) or leased to or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Loan Trustee and the Noteholders will not acquire or claim, as against the Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in (A) any engine or engines owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such Permitted Air Carrier lease or conditional sale or other security agreement. The Loan Trustee acknowledges that any “wet lease” or other similar arrangement under applicable law;which the Company maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 6 contracts
Samples: Note Purchase Agreement (American Airlines Inc), Note Purchase Agreement (American Airlines Inc), Note Purchase Agreement (American Airlines Inc)
Possession. The Owner, without Without the prior written consent of MortgageeLoan Trustee, Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided that Company (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject (or permit any Permitted Lessee to subject) the Airframe or any Engine to the CRAF Program or transfer (or permit any Permitted Lessee to transfer) possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that Company (or any Permitted Lessee) (A) shall promptly notify Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as the case may be, shall have received either: (1) Company has obtained from the lessor, mortgagee, lessor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to Loan Trustee (an agreement from such lessor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to Loan Trustee), whereby such Person lessor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee), leased to Owner Company (or such any Permitted Lessee, ) or purchased by Owner Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation adversely affects Loan Trustee’s security interest in such Engine, Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Company with Section 7.05(b);
(viviii) Transfer lease any Engine or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; provided that no Event of Default exists at the time such lease is entered into; and
(ix) lease any Engine or the Airframe and Engines to (A) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (B) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) and (C) any foreign air carrier consented to in writing by Loan Trustee with the U.S. Governmentconsent of a Majority in Interest of Noteholders; provided that (w) no Event of Default exists at the time such lease is entered into, (x) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains normal diplomatic relations with the country in which event Owner shall promptly notify Mortgagee such foreign air carrier is based at the time such lease is entered into and in writing the case of a lease to a foreign air carrier principally based in Taiwan, the United States maintains diplomatic relations with Taiwan at least as good as those on the Closing Date, (y) in the case of a lease to any foreign air carrier, Company furnishes Loan Trustee with a certificate from a Responsible Officer of Company certifying that there exist no possessory rights in favor of such lessee under the laws of such lessee’s country which would, upon bankruptcy or insolvency of or other default by Company, and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture is enforceable to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Sections 7.02(b) and (c) or (y) permit any action not permitted to be taken by Company with respect to the Aircraft hereunder. Company shall promptly notify Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. Loan Trustee, each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note agrees, for the benefit of Company (and any Permitted Lessee) and for the benefit of the lessor or secured party of any airframe or engine leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that Loan Trustee, Noteholders and Related Noteholders will not acquire or claim, as against Company (or any Permitted Lessee) or such lessor or secured party, any right, title or interest in: (A) any engine or engines owned by Company (or any Permitted Air Carrier Lessee) or by the lessor under applicable law;such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe, or (B) any airframe owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of any Engine being installed on such airframe. Loan Trustee acknowledges that any “wet lease” or other similar arrangement under which Company (or any Permitted Lessee) maintains operational control of the Aircraft does not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 5 contracts
Samples: Indenture and Security Agreement (Delta Air Lines Inc /De/), Indenture and Security Agreement (Delta Air Lines Inc /De/), Indenture and Security Agreement (Delta Air Lines Inc /De/)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Note Holder and Related Note Holder by acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and Related Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 4 contracts
Samples: Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.)
Possession. The Owner, without the prior consent of Mortgagee, Lessee shall not lease sublease, or otherwise in any manner deliver, relinquish or transfer or relinquish possession of the Aircraft, the Airframe or any Engine leased hereunder to any Person or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; , during the Term, without the prior consent of the Lessor, which consent may be withheld in its sole discretion, PROVIDED, HOWEVER, that so long as (A) only in the case of clause (x) below, no Default of the type referred to in Section 16(a), (b), (f), (g) or (h) hereof shall have occurred and be continuing, (B) no Event of Default shall have occurred and be continuing, and (C) all approvals, consents or authorizations required from the Aeronautical Authority in connection with any such sublease or such delivery, transfer or relinquishment of possession have been obtained and remain in full force and effect, the Lessee (or, except that in the Owner case of clause (x) below, any Permitted Sublessee) may, without such the prior written consent of Mortgageethe Lessor:
(i) Subject enter into a charter or permit any wet lease or other similar arrangement under which the Lessee (or such Permitted Lessee to subject (iSublessee) has operational control of the Airframe to normal interchange agreements and any Engines installed thereon in the course of the Lessee's business (which shall not be considered a transfer of possession hereunder), provided that the Lessee's obligations under this Lease and such Permitted Sublessee's obligations under the relevant Sublease shall continue in full force and effect notwithstanding any such charter or wet lease or other similar arrangement;
(ii) deliver possession of the Airframe or any Engine or any Part to the manufacturer thereof or to any organization for testing, service, repair, maintenance, overhaul work or other similar purposes or for alterations or modifications or additions required or permitted by the terms of this Lease;
(iii) subject the Airframe and any Engines installed thereon to interchange agreements (provided that (x) any such interchange agreement with respect to the Airframe shall not result in the Lessee (or a Permitted Sublessee) being out of possession of the Airframe for a period of more than two (2) consecutive days at any one time; (y) such interchange agreement is entered into with a Permitted Sublessee; and (z) the party to such interchange agreement is not then subject to a proceeding or final order under applicable bankruptcy, insolvency or reorganization laws on the date such interchange agreement is entered into) or any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in arrangements which are applicable to other similar property owned by or leased to the commercial airline industry Lessee (or such Permitted Sublessee) and are entered into by Owner the Lessee (or such Permitted Lessee, as the case may be, Sublessee) in the ordinary course of business; PROVIDEDits airline business with any air carrier, HOWEVERprovided, that (A) no such agreement or arrangement shall under any circumstances result in, contemplate or require the transfer of title to the Aircraft, Airframe or any Engine and (B) if Ownerthe Lessor's title to any such Engine is shall nevertheless be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of with respect to such Engine and the date of such divestiture, and Owner Lessee shall comply with Section 4.04(e7(e) hereof in respect thereof;
(iiiv) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Lessee (or such Permitted Lessee, as the case may be, Sublessee) free and clear of all Liens except (A) Permitted Liens, except (xB) Permitted Liens and those that do not which apply only to the engines (other than the Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe, and (yC) those created by the rights of third parties other air carriers under normal interchange or pooling agreements and or other arrangements customary in the airline industry which do not contemplate, permit or require the transfer of the type that would be permitted under Section 4.02(b)(i)title to such airframe or engines installed thereon;
(ivv) Install or permit any Permitted Lessee to install an Engine on an airframe airframe, leased to Owner the Lessee (or such Permitted Lessee, Sublessee) or purchased by Owner the Lessee (or such Permitted Lessee Sublessee) subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if (xA) such airframe is free and clear of all Liens, except (Ai) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (Bii) Liens of the type permitted by clause (iiiSection 5(b)(iv) above and (yB) Owner Lessee (or such Permitted Lessee, as the case may be, Sublessee) shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to this Lease (or, in the Lien case of this Trust Indenturesuch Permitted Sublessee, the relevant Sublease) or is owned by Lessor;
(vvi) Install or permit any Permitted Lessee to install an Engine on an airframe airframe, owned by Owner the Lessee (or such Permitted LesseeSublessee), leased to Owner by the Lessee (or such Permitted Lessee, Sublessee) or purchased by Owner the Lessee (or such Permitted Lessee Sublessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiiv) or nor clause (ivv) above is applicable; PROVIDED, HOWEVER, provided that any such installation (so long as the same shall be continuing) shall be deemed an Event of Loss with respect to such Engine, Engine and Owner the Lessee shall comply with Section 4.04(e7(e) hereof in respect thereofhereof;
(vivii) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. GovernmentUnited States of America or any instrumentality thereof pursuant to the Civil Reserve Air Fleet Program (as established and administered pursuant to Executive Order 11490, as amended, as superseded by United States Executive Order No. 12656) or any similar or substitute program ("CRAF Program"), in which event Owner Lessee (or such Permitted Sublessee) shall promptly notify Mortgagee Lessor in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAFthe CRAF Program, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for of the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangementCRAF Program;
(viii) So long as no transfer possession of the Airframe or any Engine to the United States of America, or to a foreign government, when required by Applicable Law (it being understood that nothing in this clause (viii) shall relieve the Lessee from its obligations under Section 8(a) if such transfer becomes an Event of Default Loss), in which event Lessee shall have occurred and be continuing, and promptly notify Lessor in writing of any such transfer of possession;
(ix) [Reserved];
(x) subject to the provisions of the immediately following paragraphthis Section 5(b), enter into a lease sublease with respect to the Aircraft, Airframe or any Engine or the Airframe and Engines or engines then installed on the Airframe to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, Sublessee if (A) Lessee shall provide written notice to Lessor and Owner Participant at least 10 days prior to entering into any such sublease, (B) in any such case, the sublessee under such sublease is not subject to a proceeding or final order under applicable bankruptcy, insolvency or reorganization laws on the date such sublease is entered into, (C) in the event that the sublessee under such sublease is a foreign air carrier or Person based in a country other than the United States, the United States maintains normal diplomatic relations with the country of domicile in which such proposed sublessee is principally based at the time such sublease is entered into and (D) in the event that the sublessee under such sublease is a foreign air carrier or Person based in a country other than the United States, prior to the effectiveness of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner sublease Lessor shall have furnished Mortgagee a favorable received an opinion (in form and substance reasonably acceptable to Lessor) of counsel, counsel to Lessee (reasonably satisfactory acceptable to Mortgagee, in Lessor) to the country of domicile of such Permitted Foreign Air Carrier, effect that (vI) the terms of such lease are the proposed sublease will be legal, valid valid, binding and binding obligations (subject to customary exceptions) enforceable against the proposed sublessee in the country in which the proposed sublessee is principally based, (II) there exist no possessory rights in favor of the parties thereto enforceable sublessee under such sublease under the laws of such jurisdictionsublessee's country of domicile that would, upon bankruptcy or insolvency of or other default by the Lessee and assuming that at such time such sublessee is not insolvent or bankrupt, prevent the return or repossession of the Aircraft in accordance with and when permitted by the terms of Section 17(a) upon the exercise by Lessor of its remedies under Section 17(a), (wIII) the laws of such sublessee's country of domicile require fair compensation by the government of such jurisdiction payable in currency freely convertible into Dollars for the loss of use of or title to such Engine or the Airframe in the event of the requisition by such government of such use or title (it being understood that in the event such opinion cannot be given in a form reasonably satisfactory to the Owner Participant, such opinion will be waived if insurance reasonably satisfactory to the Owner Participant is provided to cover such requisition), (IV) the laws of such sublessee's country of domicile would give recognition to Lessor's title to such Engine or the Airframe, to the registry of such Engine or the Airframe in the name of Lessor (or Lessee, as "lessee", or the proposed sublessee, as appropriate), (V) all filings, if any, required to be made in such jurisdiction in connection with the execution of such sublease in order to protect the interest of Lessor in such Engine or the Airframe have been made, (VI) it is not necessary for Mortgagee the Owner Participant or Lessor to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed leasesublease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (zVII) the agreement of such Permitted Air Carrier Sublessee that its rights under the lease sublease are subject and subordinate to all the terms of this Trust Indenture Lease is enforceable against such Permitted Sublessee under Applicable Law of such country, and (VIII) there is no tort liability for owners not in possession of aircraft in such country more onerous than under the laws of the United States or any state thereof (it being agreed that in the event such opinion cannot be given in a form reasonably satisfactory to the Owner Participant, such opinion will be waived if insurance reasonably satisfactory to the Owner Participant is provided to cover the risk of such tort liability); provided that no such sublease shall be made to a Permitted Sublessee of the type described in clause (b) of the definition thereof that is not domiciled in the United States or of the type described in clause (b) of the definition of Permitted Air Carrier or to any tax exempt entity within the meaning of Section 168(h) of the Code prior to the end of the Recovery Period, unless the Lessee prepays on a lump sum basis any liability due under applicable lawthe Tax Indemnity Agreement as a result of such sublease based upon the assumption that such sublease will continue for the full term of such sublease;
Appears in 4 contracts
Samples: Lease Agreement (Republic Airways Holdings Inc), Lease Agreement (Republic Airways Holdings Inc), Lease Agreement (Republic Airways Holdings Inc)
Possession. The Owner, without Without the prior written consent of MortgageeLoan Trustee, Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided that Company (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements interchange, pooling, borrowing or pooling other similar agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part to (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine terms hereof or (y) to any Person for the purpose purposes of transport to a Person referred to in the preceding clause (x);
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or any Engine to the CRAF Program or transfer possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that Company (or any Permitted Lessee Lessee) (A) shall promptly notify Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange, pooling, borrowing or other similar agreements or arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a lease, conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as the case may be, shall have received either: (1) Company has obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form satisfactory to Loan Trustee (an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee), leased to Owner Company (or such any Permitted Lessee, ) or purchased by Owner Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation adversely affects Loan Trustee’s security interest in such Engine, Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Company with Section 7.05(b);
(viviii) Transfer lease any Engine, the Airframe or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; provided that no Event of Default exists at the time such lease is entered into; and
(ix) lease any Engine, the Airframe or the Airframe and Engines to (A) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (B) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) and (C) any foreign air carrier consented to in writing by Loan Trustee with the U.S. Governmentconsent of a Majority in Interest of Noteholders; provided that (w) no Event of Default exists at the time such lease is entered into, (x) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains normal diplomatic relations with the country in which event Owner shall promptly notify Mortgagee such foreign air carrier is based at the time such lease is entered into and in writing the case of a lease to a foreign air carrier principally based in Taiwan, the United States maintains diplomatic relations with Taiwan at least as good as those on the Closing Date, (y) in the case of a lease to any foreign air carrier, Company furnishes Loan Trustee with a certificate from a Responsible Officer of Company certifying that there exist no possessory rights in favor of such lessee under the laws of such lessee’s country which would, upon bankruptcy or insolvency of or other default by Company, and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Sections 7.02(b) and (c) or (y) permit any action not permitted to be taken by Company with respect to the Aircraft hereunder. Company shall promptly notify Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. Loan Trustee, the Company Guarantee Beneficiary by its entry into the Company Guarantee, each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note agrees, for the benefit of Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to Company (or any Permitted Lessee) or leased to or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that Loan Trustee, the Company Guarantee Beneficiary, Noteholders and Related Noteholders will not acquire or claim, as against Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in: (A) any engine or engines owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement, or (B) any airframe owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such lease or conditional sale or other security agreement. Loan Trustee acknowledges that any “wet lease” or other similar arrangement under which Company (or any Permitted Air Carrier under applicable law;Lessee) maintains operational control of the Aircraft does not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 3 contracts
Samples: Indenture and Security Agreement (Alaska Air Group, Inc.), Indenture and Security Agreement (Alaska Air Group, Inc.), Indenture and Security Agreement (Alaska Air Group, Inc.)
Possession. The OwnerBorrower shall not, without the Security Agent’s prior consent of Mortgageewritten consent, shall not lease or otherwise in any manner deliver, transfer transfer, or relinquish possession of the Aircraft, the Airframe Airframe, or any Engine Engine, or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner Borrower may, without such prior written consent of Mortgageeconsent:
(i1) Subject subject or permit any Permitted Lessee to subject (iaa) the Airframe to normal interchange agreements or (iibb) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Borrower or such Permitted Lessee, as the case may be, Lessee in the ordinary course of business; PROVIDED, HOWEVERprovided, that (i) no such agreement or arrangement contemplates (other than as contemplated with respect to an Event of Loss) or requires the transfer of title to the Airframe or any Engine and (ii) if Owner's Borrower’s title to any such Airframe or Engine is divested under any such agreement or arrangement, then such Airframe or Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner Borrower shall comply with Section 4.04(eSections 4.4(e) or 4.5 (as the case may be) in respect thereof;
(ii2) Deliver deliver or permit any Permitted Lessee to deliver possession of the Aircraft, the Airframe, any Engine Engine, or any Part (xaa) to the manufacturer thereof or to any third-party maintenance provider (approved by the Aviation Authority for that Aircraft, Airframe, Engine or Part) for testing, service, repair, maintenance maintenance, or overhaul work on the Aircraft, the Airframe, any Engine Engine, or any Part, or, to the extent required or permitted by Section 4.04the terms of this Agreement, for alterations or modifications in or additions to the Aircraft, Airframe the Airframe, or any Engine Engine, or (ybb) to any Person for the purpose of transport to a Person referred to in the preceding clause (xaa);
(iii3) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Borrower or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, except (xaa) Permitted Liens and those that do not apply to the Engines, and (ybb) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i4.2(b)(1);
(iv4) Install install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Borrower or such Permitted Lessee, or purchased or owned by Owner Borrower or such Permitted Lessee subject to a mortgage, security agreement, conditional sale sale, or other secured financing arrangement, but only if (xaa) such airframe is free and clear of all Liens, except (Ai) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe airframe, and (Bii) Liens of the type permitted by clause (iii3) above of this Section 4.2(b), and (ybb) Owner Borrower or Permitted Lessee, as the case may be, shall have Lessee has received from the lessor, mortgageesecured party, secured party or conditional seller, seller in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title title, or interest in, or Lien on, such Engine by reason of the installation of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v5) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner Borrower or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii3) or nor clause (iv4) above is applicableof this Section 4.2(b) applies; PROVIDED, HOWEVERprovided, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Borrower shall comply with Section 4.04(e4.4(e) hereof in respect thereof;
(vi6) Transfer transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe the Airframe, or any Engine to (aa) a U.S. Governmental Entity pursuant to CRAF or (bb) to a U.S. Governmental Entity when required by applicable Law, as the U.S. Governmentcase may be. Neither such event shall, in which event Owner for the avoidance of doubt, be deemed to be an Event of Loss. Borrower shall promptly notify Mortgagee (to the extent Borrower is permitted to do so by applicable U.S. Law) Security Agent in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in and such notification shall identify by the name, address and telephone numbers number of the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii7) Enter enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's provided, that Borrower’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangementand provided, further that Borrower shall promptly notify Security Agent in writing if any Wet Lease in respect of the Aircraft is more than six (6) months in duration (and the Aircraft is the only aircraft that is subject to such Wet Lease);
(viii) So long as 8) if no Event of Default shall have occurred and be continuingexists, and subject to the provisions of the immediately following paragraphparagraphs, enter into a lease (a “Permitted Lease”) with respect to the Aircraft, Airframe the Airframe, or any Engine to with any Permitted Air Carrier that or Permitted Manufacturer who is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution dissolution, or similar proceeding and or with a U.S. Governmental Entity (other than with any branch of the military of the U.S. Government), subject to compliance with the following conditions:
(i) Borrower shall not have substantially all of its property in the possession give at least thirty (30) days’ prior written notice to Security Agent of any liquidatorPermitted Lease under specifying (a) the Permitted Lessee, trustee(b) the term of the Permitted Lease, receiver (c) the domicile of the Permitted Lessee, and (d) the country in which the Aircraft is to be ordinarily stored overnight by such Permitted Lessee (as contemplated by the Permitted Lease). Such notice shall be accompanied by the proposed lease agreement.
(ii) Any Permitted Lease shall include appropriate provisions:
(A) requiring the maintenance, inspection, insurance, operation and inspection of the Aircraft, Airframe or similar person; PROVIDED THATEngine(s) leased thereby to be in accordance with the relevant provisions of this Mortgage,
(B) requiring the Permitted Lessee to keep the Aircraft, Airframe or Engine(s) leased thereby free and clear of Liens other than Permitted Liens,
(C) prohibiting further sublease (except as provided below) of the Aircraft, Airframe or Engine(s),
(D) containing in the case only of a proposed lease to a Permitted Foreign Air Carrier, an express waiver by such lessee of the defense of sovereign immunity (1) in any suit, action or proceeding arising out of or relating to such Permitted Lease and (2) with respect to the defense of such lessee’s property from execution or attachment,
(E) providing that the Aircraft shall not be operated or used, and shall be grounded if the insurance coverages required by the terms of Section 4.6 of this Mortgage are not in effect, and
(F) requiring Permitted Lessee to ensure that registration of the Aircraft in the name of Borrower under the Transportation Code except as permitted in Section 4.2(c), and
(G) such other terms and conditions as may be reasonably requested by the Security Agent in connection with a Permitted Lease to a U.S. Governmental Entity.
(iii) in the case of a lease to a Permitted Foreign Air Carrier, Security Agent shall receive evidence reasonably satisfactory to it that: (A1) all necessary approvals from any Governmental Entity required for the United States maintains diplomatic relations with leased Airframe or any leased Engine or engine, as the case may be, to be imported and, to the extent reasonably obtainable and reasonably requested, exported from the applicable country of domicile upon repossession of such Permitted Foreign Air Carrier (or, in equipment by Security Agent shall have been obtained prior to the case importation of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) imported Airframe and/or Engine under any such lease; and (B2) Owner shall have furnished Mortgagee the insurance requirements of Section 4.6 and Annex B are satisfied; and
(iv) in connection with any Permitted Lease to a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualifiedBorrower shall obtain at its own cost, as a result, in whole or in part, of condition to the delivery to the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws Permitted Lessee of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines any Engine, an opinion from reputable counsel selected by Borrower and reasonably acceptable to Security Agent located in the event country of such Permitted Lessee’s domicile (or, if Borrower determines during the term of the requisition by such government Permitted Lease that the Aircraft or Airframe or any Engine will be based or primarily used in a country other than the country of such title Permitted Lessee’s domicile, an additional opinion or opinions of reputable counsel selected by Borrower and reasonably acceptable to Security Agent located in such other country) in form and substance reasonably satisfactory to Security Agent; provided, that (unless Owner 1) the rights of any transferee who receives possession by reason of a transfer permitted by this Section 4.2(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall provide insurance be subject and subordinate to this Mortgage and to Security Agent’s rights, powers and remedies hereunder, (2) Borrower shall remain primarily liable for the performance of this Mortgage and all the terms and conditions of this Mortgage and the other Operative Agreements shall remain in effect to the amounts required with respect to hull insurance under this Trust Indenture covering the requisition same extent as if such transfer had not occurred, and no transfer of title to possession of the Aircraft, Airframe or Engines any Engine or any failure of performance under or with respect to such transfers shall in any way discharge (except to the extent performed by such transferee) or diminish any of Borrower’s obligations to Security Agent hereunder or under any Operative Agreement, and (3) no lease or transfer of possession otherwise in compliance with this Section 4.2(b) shall (aa) result in any registration or re-registration of the government Aircraft (except to the extent permitted by Section 4.2(e)) or the maintenance, operation, or use thereof except in compliance with Sections 4.2(c) and 4.2(d), or (bb) permit any action not permitted to Borrower hereunder. In the case of any Permitted Lease, Borrower will include in such jurisdiction so long lease appropriate provisions which (x) make such lease expressly subject and subordinate to this Mortgage and (y) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to Borrower’s possession and use provided in this Mortgage and provide for the maintenance and inspection of the Aircraft in the same manner in all material respects as the applicable provisions of this Mortgage. No Permitted Lessee may sublease the Airframe or any Engine, except that a Permitted Manufacturer or Affiliate of Borrower that is a Permitted Lessee may sublease to any Permitted Lessee to whom a lease would be permitted under this Section 4.2; provided that (A) such sublease shall not permit any sub-subleasing of the Aircraft, the Airframe, or any Engine (and Borrower shall ensure that the same does not occur), (B) such sublease shall be assigned to Borrower to secure such Permitted Manufacturer’s obligations under its lease pursuant to a sublease assignment and sublessee consent each in form and substance reasonably satisfactory to Security Agent, and (C) Borrower shall comply, and shall cause such sublease to comply, with all requirements and conditions of this Section 4.2 as if such sublease were a direct lease from Borrower to the sublessee. Borrower shall reimburse Security Agent for all of its reasonable out-of-pocket fees and expenses (including reasonable fees and disbursements of counsel) incurred in connection with any such lease or sublease. Except as otherwise provided herein and without in any way relieving Borrower from its primary obligation for the performance of its obligations under this Mortgage, Borrower may in its sole discretion permit a lessee to exercise any or all rights which Borrower would be entitled to exercise under Section 4.2 and Section 4.4, and may cause a lessee to perform any or all of Borrower’s obligations under Article 4, and Security Agent agrees to accept actual and full performance thereof by a lessee in lieu of performance by Borrower. Security Agent hereby agrees, and each Lender by acceptance of an Equipment Note agrees, for the benefit of each lessor, conditional seller, or secured party of any engine leased, purchased, or owned by Borrower or any Permitted Lessee subject to a lease, conditional sale, or other security agreement that Security Agent, each Lender, and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, or secured party, any right, title, or interest in any engine as the result of the installation of such engine on the Airframe or Engines are at any time while such engine is subject to such lease) , conditional sale, or other security agreement and (z) the agreement owned by such lessor or conditional seller or subject to a security interest in favor of such secured party; provided, Borrower or any Permitted Air Carrier Lessee has received from any such lessor, secured party, or conditional seller in respect of any airframe leased, purchased or owned by Borrower or any Permitted Lessee, a written agreement (which may be a copy of the lease, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that neither it nor its rights under successors will acquire or claim any right, title, or interest in an Engine by reason of the lease are installation of such Engine on any such airframe at any time while such Engine is subject to the Lien of this Mortgage. As security for Borrower’s due and subordinate punctual payment and performance of all of its covenants and obligations in the Operative Agreements, Borrower hereby grants to Security Agent a security interest in all of Borrower’s right, title, and interest in and to each Permitted Lease having a term in excess of one year of any Aircraft, Airframe, or Engine, including with respect to all payments, including payments of rent, insurance proceeds (other than public liability insurance proceeds), and other amounts due or to become due thereunder. Borrower shall enter into a “Lease Assignment” and a “Lessee Consent” each in form and substance reasonably satisfactory to Security Agent with respect to each Permitted Lease of the terms Airframe having a term of this Trust Indenture is enforceable against one or more years. In connection therewith Borrower shall cause (subject to the consent of the Security Agent) an assignment of associated rights with respect to such Permitted Air Carrier Lease to be registered with the International Registry, and in addition shall take such additional actions as are required under applicable law;Section 6.1of the Loan Agreement.
Appears in 3 contracts
Samples: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Loan Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Loan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any subject such Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's the Company’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or such Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, maintenance or reconditioning, restoration, storage, maintenance, overhaul work on or other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or such Engine to any Permitted Lessee Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or such Engine to the CRAF Program or transfer possession of the Airframe or such Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that the Company (A) shall promptly notify the Loan Trustee upon transferring possession of the Airframe or such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased, purchased or owned by the Company (or any Permitted Lessee) subject to a lease, conditional sale and/or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or any conditional sale or security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Loan Trustee (it being understood that an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, in such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding the installation thereof on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of , if such installation shall adversely affect the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, Loan Trustee’s security interest in such notification shall identify Engine, the Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement Company with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunderSection 7.05(b); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So lease such Engine or the Airframe and Engines to any United States air carrier as to which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. §§41101-41112) or successor provision that gives like authority, or to any manufacturer of airframes or engines (or an Affiliate thereof acting under an unconditional guarantee of such manufacturer), so long as such manufacturer and, if applicable, such Affiliate is domiciled in the United States); provided that no Event of Default shall have occurred exist at the time any such lease is entered into; and
(ix) lease such Engine or the Airframe and be continuing, and subject Engines to (A) any foreign air carrier that is at the provisions inception of the immediately following paragraphlease based in and a domiciliary of a country listed in Exhibit B hereto, enter into (B) any foreign manufacturer of airframes or engines (or a foreign Affiliate of a United States or foreign manufacturer of airframes or engines acting under an unconditional guarantee of such manufacturer), so long as such foreign manufacturer or (if applicable) foreign Affiliate is domiciled in a country indicated with an asterisk on Exhibit B hereto, or (C) any foreign air carrier consented to in writing by the Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (x) in the case of a lease to, or guarantee by, any entity pursuant to this Section 7.02(a)(ix), (1) other than a foreign carrier principally based in Taiwan, the United States maintains diplomatic relations with respect to the Aircraftcountry in which such entity is based and domiciled at the time such lease is entered into, Airframe or any Engine to any Permitted Air Carrier that (2) no Event of Default exists at the time such lease is entered into and (3) such entity is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, and (y) in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and any foreign manufacturer or foreign Affiliate under clause (B) Owner above, the re-registration conditions set forth in Section 7.02(e) shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory be satisfied notwithstanding anything to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business contrary in such jurisdiction, if not already so registered clause (B); provided that the rights of any lessee or qualified, as a result, in whole or in part, other transferee who receives possession of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including the Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and Section 7.02(c) or (y) permit any action not permitted to be taken by the Company with respect to the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. The Loan Trustee, and each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note, agrees, for the benefit of the Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to the Company (or any Permitted Lessee) or leased to or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Loan Trustee and the Noteholders will not acquire or claim, as against the Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in (A) any engine or engines owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such Permitted Air Carrier lease or conditional sale or other security agreement. The Loan Trustee acknowledges that any “wet lease” or other similar arrangement under applicable law;which the Company maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 3 contracts
Samples: Indenture and Security Agreement (American Airlines Inc), Indenture and Security Agreement (Amr Corp), Indenture and Security Agreement (American Airlines Inc)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to Lease, Assignment and Transfer. LESSEE WILL NOT ASSIGN THIS LEASE OR ANY RIGHTS OR OBLIGATIONS HEREUNDER OR INTEREST HEREIN (EXCEPT AS PROVIDED IN SECTION 8(e) BELOW) OR SUBLEASE, WET LEASE OR OTHERWISE IN ANY MANNER TRANSFER, DELIVER OR RELINQUISH POSSESSION OR USE OF
(1) subject (i) the Airframe to normal interchange agreements or (ii) any Engine to a normal interchange agreements interchange, maintenance, servicing or pooling agreements agreement or arrangementssimilar arrangement with a Permitted Sublessee, in each case customary in the commercial airline industry of which Lessee is a part and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of its business; PROVIDEDprovided that Lessor has been given an opportunity to review the interchange, HOWEVERmaintenance, servicing, pooling or similar arrangement, including but not limited to all agreements and other documents relating thereto and has consented, which consent shall not be unreasonably withheld, to the placement of the Engine into such interchange, maintenance, servicing, pooling or similar arrangement and provided, further that (A) no transfer of the registration of the Engine shall be effected in connection therewith and (B) (i) no such agreement or arrangement contemplates, results in or requires the transfer of title to the Engine, and (ii) if OwnerLessor's title to any such the Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as with respect to the Engine and not an Event of the date of such divestiture, Default and Owner Lessee shall comply with Section 4.04(e11(a) hereof in respect thereof;
(ii2) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof Manufacturer, or in accordance with the Maintenance Program to any third-party maintenance provider an FAA certified repair station, for testing, service, storage, repair, maintenance maintenance, inspection or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe Engine to the extent required or any Engine or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)Section 9 hereof;
(iii3) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. GovernmentUnited States of America or any instrumentality or agency thereof pursuant to a sublease;
(i) subject the Engine to the Civil Reserve Air Fleet Program and transfer possession of the Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program, in which event Owner so long as Lessee shall promptly notify Mortgagee in writing Lessor upon transferring possession of any such transfer of possession and, in the case of any transfer Engine to the United States Government pursuant to CRAF, in such notification shall identify by name, the Civil Reserve Air Fleet Program and provide Lessor with the name and address and telephone numbers of the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAFgiven;
(viiii) Enter into a charter or Wet Lease or other similar arrangement with respect to subject the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of (a) a lease to a Permitted Foreign Air Carrier, (A) service contract with the United States maintains diplomatic relations with Government, a copy of which shall be provided to Lessor, providing for possession to be held by the country of domicile of such Permitted Foreign Air Carrier (or, in United States Government for a period not extending beyond the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations end of the parties thereto enforceable under the laws of such jurisdictionTerm, or (wb) it is not necessary a requisition for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation use by the government United States Government not constituting an Event of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable lawLoss;
Appears in 3 contracts
Samples: Engine Lease Agreement (America West Airlines Inc), Engine Lease Agreement (America West Airlines Inc), Engine Lease Agreement (America West Airlines Inc)
Possession. The Owner(i) Lease, without Assignment and Transfer. LESSEE WILL NOT ASSIGN THIS LEASE OR ANY RIGHTS OR OBLIGATIONS HEREUNDER OR INTEREST HEREIN (EXCEPT AS PROVIDED IN SECTION 8(e) BELOW) OR SUBLEASE, WET LEASE OR OTHERWISE IN ANY
(1) subject any Engine to a normal interchange, maintenance, servicing or pooling agreement or similar arrangement with a Permitted Sublessee, in each case customary in the prior consent airline industry of Mortgageewhich Lessee is a part and entered into in the ordinary course of its business; provided that no transfer of the registration of any Engine shall be effected in connection therewith; and provided, further, that (A) no such agreement or arrangement contemplates, results in or requires the transfer of title to any Engine, and (B) if Lessor's title to any Engine shall be divested under any such agreement or arrangement, such divestiture shall be deemed to be an Event of Loss with respect to such Engine and not lease or otherwise an Event of Default and Lessee shall comply with Section 11(b) hereof in any manner deliver, transfer or relinquish respect thereof;
(2) deliver possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof thereof, or in accordance with the Maintenance Program to any third-party maintenance provider an FAA certified repair station, for testing, service, storage, repair, maintenance maintenance, inspection or overhaul work on the such Aircraft, Airframe, any Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the such Aircraft, Airframe or any Engine to the extent required or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)Section 9 hereof;
(iii3) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Aircraft or the Airframe to the United States of America or any instrumentality or agency thereof pursuant to a sublease;
(4) (i) subject the Airframe to the Civil Reserve Air Fleet Program and transfer possession of the Airframe or any Engine to the U.S. GovernmentUnited States Government pursuant to the Civil Reserve Air Fleet Program, in which event Owner so long as Lessee shall promptly notify Mortgagee in writing Lessor upon transferring possession of the Airframe or any such transfer of possession and, in Engine to the case of any transfer United States Government pursuant to CRAF, in such notification shall identify by name, the Civil Reserve Air Fleet Program and provide Lessor with the name and address and telephone numbers of the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder)given; PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;
Appears in 3 contracts
Samples: Aircraft Lease Agreement (America West Airlines Inc), Aircraft Lease Agreement (America West Airlines Inc), Aircraft Lease Agreement (America West Airlines Inc)
Possession. The OwnerCompany will not, without the prior written consent of MortgageeAgent, shall not sell, assign, lease or otherwise in any manner deliver, transfer or relinquish possession or control of, or transfer the right, title or interest of the AircraftCompany in, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that Company may enter into and perform all provisions and terms of the Owner mayLease and Lessee or the Company, unless a Potential Event of Default or Event of Default shall have occurred and be continuing, without such the prior written consent of MortgageeAgent, may take the following actions so long as the actions to be taken shall not deprive the Agent of the first priority Lien of this Mortgage on the assets subject hereto and so long as the actions to be taken shall not deprive Company as Lessor of the protections of Section 1110 of the Bankruptcy Code with respect to the Aircraft nor shall such actions deprive the Agent of the protections of Section 1110 of the Bankruptcy Code with respect to the Aircraft as assignee of Company's rights under this Mortgage:
(i) Subject or permit any Permitted Lessee to subject (i) transfer possession of the Airframe or any Engine other than by lease to normal interchange agreements the United States of America or any instrumentality thereof pursuant to the Civil Reserve Air Fleet Program (as administered pursuant to Executive Order 12656, or any substitute order) or any similar or substitute programs;
(ii) transfer possession of the Airframe or any Engine to the manufacturer thereof for testing or other similar purposes or any other organization for service, repairs, maintenance or overhaul or, to the extent permitted by Section 4(e) hereof, for alterations or modifications;
(iii) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case arrangements of the type customary in the commercial United States airline industry and entered into by Owner Company or such Permitted Lessee, as the case may be, Lessee in the ordinary course of businessbusiness which do not contemplate or require the transfer of title to, use for the remainder of its useful life, or registration of the Airframe or title to, or use for the remainder of its useful life of such Engine; PROVIDEDprovided, HOWEVER, that however if OwnerCompany's title to or use for the remainder of its useful life, of the Airframe or any such Engine is Engines shall be divested under any such agreement or arrangement, then such Engine divesture shall be deemed to have suffered be an Event of Loss as of with respect to the date of Airframe or such divestiture, Engine and Owner Company shall comply with Section 4.04(e4(f) in respect thereof;
(iiiv) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe which is owned by Owner or Lessee; provided that such Permitted Lessee, as the case may be, airframe is free and clear of all Liens, Liens on property of Lessee except (xA) Permitted Liens and those permitted under the Lease, (B) Liens that do not apply only to the engines (other than the Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety), and (yC) the rights of third parties any Domestic Air Carrier, under normal interchange agreements which are customary in the airline industry and do not contemplate or pooling agreements and arrangements require the transfer of title to such airframe or the type that would be permitted under Section 4.02(b)(i)engines installed thereon;
(ivv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if provided: (xA) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe and (B) except Liens of the type permitted by clause (iiiiv) above above; and (yB) Owner or Permitted Lessee, as the case may be, Agent shall have received from the lessor, mortgagee, conditional vendor or secured party or conditional sellerand each of the purchasers, in respect mortgagees and encumbrancers of such airframelessor, conditional vendor or secured party of such airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale agreement or other agreement mortgage covering such airframe), whereby such Person lessor, conditional vendor or secured party and each of the purchasers, mortgagees and encumbrancers of such lessor, conditional vendor or secured party expressly and effectively agrees that neither it nor its successors and assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while when such Engine is subject to the Lien of this Trust IndentureMortgage;
(vvi) Install or permit any Permitted Lessee to install an Engine on an airframe owned or leased by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iiiiv) or nor clause (ivv) above is applicable; PROVIDED, HOWEVER, provided that any divesture of title to such Engine resulting from such installation shall be deemed to be an Event of Loss with respect to such Engine, Engine and Owner Company shall comply with Section 4.04(e4(f) hereof in respect thereof;
(vivii) Transfer authorize or permit any Permitted the Lessee to transfer possession enter into an ACMI Contract or wet lease for the Airframe and the Engines or engines installed thereon with any third party pursuant to which Company has operational control of the Aircraft, Airframe or and any Engine Engines installed thereon such operation to be performed solely by individuals under the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing operational control of any such transfer of possession and, in Company possessing all current certificates and licenses that would be required under the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command applicable laws of the United States Air Force to whom notices must be given and to whom requests or claims must be made to for the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other performance by such employees of similar arrangement with respect to functions within the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder)United States; PROVIDED THAT the Ownerprovided that Company's obligations hereunder shall continue in full force and effect notwithstanding any such charter ACMI Contract or Wet Lease or other similar arrangement;
(viii) So long as no Event wet lease; provided, however, that the rights of Default shall have occurred and be continuing, and subject to the provisions any transferee who receives possession of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) permitted by the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will hereof shall be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are made subject and subordinate to to, and the Leases shall be made expressly subject and subordinate to, the lien and security interest of this Mortgage and all of Agent's rights hereunder and Company shall remain primarily liable hereunder for the performance of all the terms of this Trust Indenture is enforceable Mortgage to the same extent as if such transfer had not occurred, and any such instrument of transfer shall include appropriate provisions for the maintenance and insurance of the Airframe or such Engine, and any such instrument of transfer (other than the Lease) shall expressly prohibit any further transfer of the Airframe or such Engine or any assignment of the rights thereunder; and provided, further, that no such lease, pooling arrangement or other transfer or relinquishment of the possession of the Airframe or any Engine shall in any way discharge or diminish any of Company's obligations to Agent hereunder or under the Credit Agreement. In the event Agent shall have received from the lessor, conditional vendor or secured party of any airframe leased to Lessee or purchased by Lessee subject to a conditional sale or other security agreement, a written agreement complying with clause (B) of Section 4(d)(v), and the lease or conditional sale or other security agreement covering such airframe also covers an engine or engines owned by the lessor under such lease, conditionally owned by the conditional vendor under such conditional sale agreement, or subject to such security agreement, Agent hereby agrees for the benefit of such lessor, conditional vendor or secured party that Agent will not acquire or claim, as against such Permitted Air Carrier under applicable law;lessor, conditional vendor or secured party, any right, title or interest in any such engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease or conditional sale or other security agreement and owned by such lessor, conditionally owned by such conditional vendor or subject to such security agreement.
Appears in 3 contracts
Samples: Security Agreement and Chattel Mortgage (Atlas Air Inc), Security Agreement and Chattel Mortgage (Atlas Air Inc), Security Agreement and Chattel Mortgage (Atlas Air Inc)
Possession. The OwnerBorrower shall not, without the Security Agent’s prior consent of Mortgageewritten consent, shall not lease or otherwise in any manner deliver, transfer transfer, or relinquish possession of the Aircraft, the Airframe Airframe, or any Engine Engine, or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner Borrower may, without such prior written consent of Mortgageeconsent:
(i1) Subject subject or permit any Permitted Lessee to subject (iaa) the Airframe to normal interchange agreements or (iibb) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Borrower or such Permitted Lessee, as the case may be, Lessee in the ordinary course of business; PROVIDED, HOWEVERprovided, that (i) no such agreement or arrangement contemplates (other than as contemplated with respect to an Event of Loss) or requires the transfer of title to the Airframe or any Engine and (ii) if Owner's Borrower’s title to any such Airframe or Engine is divested under any such agreement or arrangement, then such Airframe or Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner Borrower shall comply with Section 4.04(eSections 4.4(e) or 4.5 (as the case may be) in respect thereof;
(ii2) Deliver deliver or permit any Permitted Lessee to deliver possession of the Aircraft, the Airframe, any Engine Engine, or any Part (xaa) to the manufacturer thereof or to any third-party maintenance provider (approved by the Aviation Authority for that Aircraft, Airframe, Engine or Part) for testing, service, repair, maintenance maintenance, or overhaul work on the Aircraft, the Airframe, any Engine Engine, or any Part, or, to the extent required or permitted by Section 4.04the terms of this Agreement, for alterations or modifications in or additions to the Aircraft, Airframe the Airframe, or any Engine Engine, or (ybb) to any Person for the purpose of transport to a Person referred to in the preceding clause (xaa);
(iii3) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Borrower or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, except (xaa) Permitted Liens and those that do not apply to the Engines, and (ybb) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i4.2(b)(1);
(iv4) Install install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Borrower or such Permitted Lessee, or purchased or owned by Owner Borrower or such Permitted Lessee subject to a mortgage, security agreement, conditional sale sale, or other secured financing arrangement, but only if (xaa) such airframe is free and clear of all Liens, except (Ai) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe airframe, and (Bii) Liens of the type permitted by clause (iii3) above of this Section 4.2(b), and (ybb) Owner Borrower or Permitted Lessee, as the case may be, shall have Lessee has received from the lessor, mortgageesecured party, secured party or conditional seller, seller in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title title, or interest in, or Lien on, such Engine by reason of the installation of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v5) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner Borrower or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii3) or nor clause (iv4) above is applicableof this Section 4.2(b) applies; PROVIDED, HOWEVERprovided, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Borrower shall comply with Section 4.04(e4.4(e) hereof in respect thereof;
(vi6) Transfer transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe the Airframe, or any Engine to (aa) a U.S. Governmental Entity pursuant to CRAF or (bb) to a U.S. Governmental Entity when required by applicable Law, as the U.S. Governmentcase may be. Neither such event shall, in which event Owner for the avoidance of doubt, be deemed to be an Event of Loss. Borrower shall promptly notify Mortgagee (to the extent Borrower is permitted to do so by applicable U.S. Law) Security Agent in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in and such notification shall identify by the name, address and telephone numbers number of the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii7) Enter enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's provided, that Borrower’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangementand provided, further that Borrower shall promptly notify Security Agent in writing if any Wet Lease in respect of the Aircraft is more than six (6) months in duration (and the Aircraft is the only aircraft that is subject to such Wet Lease);
(viii) So long as 8) if no Event of Default shall have occurred and be continuingexists, and subject to the provisions of the immediately following paragraphparagraphs, enter into a lease (a “Permitted Lease”) with respect to the Aircraft, Airframe the Airframe, or any Engine to with any Permitted Air Carrier that or Permitted Manufacturer who is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution dissolution, or similar proceeding and or with a U.S. Governmental Entity (other than with any branch of the military of the U.S. Government), subject to compliance with the following conditions:
(i) Borrower shall not have substantially all of its property in the possession give at least thirty (30) days’ prior written notice to Security Agent of any liquidatorPermitted Lease under specifying (a) the Permitted Lessee, trustee(b) the term of the Permitted Lease, receiver (c) the domicile of the Permitted Lessee, and (d) the country in which the Aircraft is to be ordinarily stored overnight by such Permitted Lessee (as contemplated by the Permitted Lease). Such notice shall be accompanied by the proposed lease agreement.
(ii) Any Permitted Lease shall include appropriate provisions:
(A) requiring the maintenance, inspection, insurance, operation and inspection of the Aircraft, Airframe or similar person; PROVIDED THATEngine(s) leased thereby to be in accordance with the relevant provisions of this Mortgage,
(B) requiring the Permitted Lessee to keep the Aircraft, Airframe or Engine(s) leased thereby free and clear of Liens other than Permitted Liens,
(C) prohibiting further sublease (except as provided below) of the Aircraft, Airframe or Engine(s),
(D) containing in the case only of a proposed lease to a Permitted Foreign Air Carrier, an express waiver by such lessee of the defense of sovereign immunity (1) in any suit, action or proceeding arising out of or relating to such Permitted Lease and (2) with respect to the defense of such lessee’s property from execution or attachment,
(E) providing that the Aircraft shall not be operated or used, and shall be grounded if the insurance coverages required by the terms of Section 4.6 of this Mortgage are not in effect, and
(F) requiring Permitted Lessee to ensure that registration of the Aircraft in the name of Borrower under the Transportation Code except as permitted in Section 4.2(c), and
(G) such other terms and conditions as may be reasonably requested by the Security Agent in connection with a Permitted Lease to a U.S. Governmental Entity.
(iii) in the case of a lease to a Permitted Foreign Air Carrier, Security Agent shall receive evidence reasonably satisfactory to it that: (A1) all necessary approvals from any Governmental Entity required for the United States maintains diplomatic relations with leased Airframe or any leased Engine or engine, as the case may be, to be imported and, to the extent reasonably obtainable and reasonably requested, exported from the applicable country of domicile upon repossession of such Permitted Foreign Air Carrier (or, in equipment by Security Agent shall have been obtained prior to the case importation of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) imported Airframe and/or Engine under any such lease; and (B2) Owner shall have furnished Mortgagee the insurance requirements of Section 4.6 and Annex B are satisfied; and
(iv) in connection with any Permitted Lease to a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualifiedBorrower shall obtain at its own cost, as a result, in whole or in part, of condition to the delivery to the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws Permitted Lessee of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines any Engine, an opinion from reputable counsel selected by Borrower and reasonably acceptable to Security Agent located in the event country of such Permitted Lessee’s domicile (or, if Borrower determines during the term of the requisition by such government Permitted Lease that the Aircraft or Airframe or any Engine will be based or primarily used in a country other than the country of such title Permitted Lessee’s domicile, an additional opinion or opinions of reputable counsel selected by Borrower and reasonably acceptable to Security Agent located in such other country) in form and substance reasonably satisfactory to Security Agent; provided, that (unless Owner 1) the rights of any transferee who receives possession by reason of a transfer permitted by this Section 4.2(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall provide insurance be subject and subordinate to this Mortgage and to Security Agent’s rights, powers and remedies hereunder, (2) Borrower shall remain primarily liable for the performance of this Mortgage and all the terms and conditions of this Mortgage and the other Operative Agreements shall remain in effect to the amounts required with respect to hull insurance under this Trust Indenture covering the requisition same extent as if such transfer had not occurred, and no transfer of title to possession of the Aircraft, Airframe or Engines any Engine or any failure of performance under or with respect to such transfers shall in any way discharge (except to the extent performed by such transferee) or diminish any of Borrower’s obligations to Security Agent hereunder or under any Operative Agreement, and (3) no lease or transfer of possession otherwise in compliance with this Section 4.2(b) shall (aa) result in any registration or re-registration of the government Aircraft (except to the extent permitted by Section 4.2(e)) or the maintenance, operation, or use thereof except in compliance with Sections 4.2(c) and 4.2(d), or (bb) permit any action not permitted to Borrower hereunder. In the case of any Permitted Lease, Borrower will include in such jurisdiction so long lease appropriate provisions which (x) make such lease expressly subject and subordinate to this Mortgage and (y) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to Borrower’s possession and use provided in this Mortgage and provide for the maintenance and inspection of the Aircraft in the same manner in all material respects as the applicable provisions of this Mortgage. No Permitted Lessee may sublease the Airframe or any Engine, except that a Permitted Manufacturer or Affiliate of Borrower that is a Permitted Lessee may sublease to any Permitted Lessee to whom a lease would be permitted under this Section 4.2; provided that (A) such sublease shall not permit any sub-subleasing of the Aircraft, the Airframe, or any Engine (and Borrower shall ensure that the same does not occur), (B) such sublease shall be assigned to Borrower to secure such Permitted Manufacturer’s obligations under its lease pursuant to a sublease assignment and sublessee consent each in form and substance reasonably satisfactory to Security Agent, and (C) Borrower shall comply, and shall cause such sublease to comply, with all requirements and conditions of this Section 4.2 as if such sublease were a direct lease from Borrower to the sublessee. Borrower shall reimburse Security Agent for all of its reasonable out-of-pocket fees and expenses (including reasonable fees and disbursements of counsel) incurred in connection with any such lease or sublease. Except as otherwise provided herein and without in any way relieving Borrower from its primary obligation for the performance of its obligations under this Mortgage, Borrower may in its sole discretion permit a lessee to exercise any or all rights which Borrower would be entitled to exercise under Section 4.2 and Section 4.4, and may cause a lessee to perform any or all of Borrower’s obligations under Article 4, and Security Agent agrees to accept actual and full performance thereof by a lessee in lieu of performance by Borrower. Security Agent hereby agrees, and each Lender by acceptance of an Equipment Note agrees, for the benefit of each lessor, conditional seller, or secured party of any engine leased, purchased, or owned by Borrower or any Permitted Lessee subject to a lease, conditional sale, or other security agreement that Security Agent, each Lender, and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, or secured party, any right, title, or interest in any engine as the result of the installation of such engine on the Airframe or Engines are at any time while such engine is subject to such lease) , conditional sale, or other security agreement and (z) the agreement owned by such lessor or conditional seller or subject to a security interest in favor of such secured party; provided, Borrower or any Permitted Air Carrier Lessee has received from any such lessor, secured party, or conditional seller in respect of any airframe leased, purchased or owned by Borrower or any Permitted Lessee, a written agreement (which may be a copy of the lease, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that neither it nor its rights under successors will acquire or claim any right, title, or interest in an Engine by reason of the lease are installation of such Engine on any such airframe at any time while such Engine is subject to the Lien of this Mortgage. As security for Borrower’s due and subordinate punctual payment and performance of all of its covenants and obligations in the Operative Agreements, Borrower hereby grants to Security Agent a security interest in all of Borrower’s right, title, and interest in and to each Permitted Lease having a term in excess of one year of any Aircraft, Airframe, or Engine, including with respect to all payments, including payments of rent, insurance proceeds (other than public liability insurance proceeds), and other amounts due or to become due thereunder. Borrower shall enter into a “Lease Assignment” and a “Lessee Consent” each in form and substance reasonably satisfactory to Security Agent with respect to each Permitted Lease of the terms Airframe having a term of this Trust Indenture is enforceable against one or more years. In connection therewith Borrower shall cause (subject to the consent of the Security Agent) an assignment of associated rights with respect to such Permitted Air Carrier Lease to be registered with the International Registry, and in addition shall take such additional actions as are required under applicable law;Section 6.1 of the Loan Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04the terms hereof, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) To the extent permitted by Section 4.04(c) hereof, subject any appliances, Parts or other equipment owned by the Owner and removed from the Airframe or any Engine to any pooling arrangement referred to in Section 4.04(c) hereof;
(viii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viiiix) So long as no Event of Default shall have occurred and be continuing, continuing and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to with any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) on the date of such lease the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, of the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;law (subject to customary exceptions); provided that (1) the rights of any Permitted Lessee or other transferee who receives possession by reason of a transfer permitted by this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to, and any lease permitted by this paragraph (b) shall be expressly subject and subordinate to, all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect, (3) the Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required pursuant to Section 4.06 remains in effect; (4) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest (subject to Permitted Liens) and International Interest of Mortgagee in the Aircraft, Airframe and Engines; (5) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease; and (6) Owner shall ensure that no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall permit any action not permitted to the Owner hereunder. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee (but not a sublessee) to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee (but not a sublessee) to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee (but not a sublessee) in lieu of performance by the Owner. The Owner shall promptly, but not later than 10 Business Days after entering into such lease, notify the Mortgagee of the existence of such lease with a term in excess of one year and provide a copy of such lease to the Mortgagee. No pooling agreement, Permitted Lease or other relinquishment of possession of the Airframe or any Engine shall in any way discharge or diminish any of Owner’s obligations to the Mortgagee under this Trust Indenture or constitute a waiver of Mortgagee’s rights or remedies hereunder. The Mortgagee agrees, and each Note Holder by acceptance of an Equipment Note agrees, and each Related Note Holder by acceptance of a Related Equipment Note agrees, for the benefit of Owner (and any Permitted Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine) owned by Owner (or any Permitted Lessee), any lessor of any engine (other than an Engine) leased to Owner (or any Permitted Lessee) and any conditional vendor of any engine (other than an Engine) purchased by Owner (or any Permitted Lessee) subject to a conditional sale agreement or any other security agreement, that no interest shall be created under this Trust Indenture in any engine so owned, leased or purchased and that neither the Mortgagee, the Note Holders, the Related Note Holders nor their successors or assigns will acquire or claim, as against Owner (or any Permitted Lessee) or any such mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine as the result of such engine being installed on the Airframe. Any Wet Lease or similar arrangement under which Owner maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 4.02. The Mortgagee acknowledges that any consolidation or merger of Owner or conveyance, transfer or lease of all or substantially all of Owner’s assets permitted by the Operative Documents shall not be prohibited by this Section 4.02.
Appears in 2 contracts
Samples: Trust Indenture and Mortgage (United Air Lines Inc), Trust Indenture and Mortgage (United Air Lines Inc)
Possession. The OwnerLessee will not, without the prior written consent of MortgageeLessor, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Engine or any Airframe or any airframe on which the Engine is installed, or install any Engine, or permit any Engine to be installed, installed on any airframe other than the an Airframe; except that provided that, so long as no Default or Event of Default shall have occurred and be continuing at the Owner time of such delivery, transfer or relinquishment of possession or installation and so long as Lessee shall comply with the provisions of Sections 7(a) and 11 hereof, Lessee may, without such the prior written consent of MortgageeLessor:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the AircraftEngine, Airframeor an Airframe on which it is then installed, any Engine or any Part (x) to the manufacturer of either thereof (or for delivery thereto) or to any third-party maintenance provider FAA approved organization (or for delivery thereto) for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required part of any thereof or permitted by Section 4.04, such Airframe or for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or such Airframe to the extent required or permitted by the terms of Section 8(c) hereof; or
(yii) to the extent permitted by Section 8(b) hereof, subject any Person for appliances, Parts or other equipment owned by Lessor and removed from the purpose of transport Engine to a Person any pooling arrangement referred to in the preceding clause (x);
(iiiSection 8(b) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the hereof. The rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine transferee who receives possession by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of a transfer permitted by this Trust Indenture;
paragraph (vb) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are effectively subject and subordinate to all the terms of this Trust Indenture Lease, including, without limitation, the covenants contained in Section 7(a) hereof and Lessor’s rights to repossession pursuant to Section 15 hereof, and Lessee shall remain primarily liable hereunder for the performance of all of the terms of this Lease to the same extent as if such transfer had not occurred. No pooling agreement or other relinquishment of possession of the Engine or any Airframe or airframe on which it is enforceable against such Permitted Air Carrier installed shall in any way discharge or diminish any of Lessee’s obligations to Lessor hereunder or constitute a waiver of Lessor’s rights or remedies hereunder. Notwithstanding anything to the contrary contained herein, Lessee under applicable law;any and all circumstances may not sublease or sub-sublease, and is prohibited from entering into any sublease or sub-sublease with respect to, the Engine (whether by itself or installed on an Airframe or airframe).
Appears in 2 contracts
Samples: Engine Lease Agreement (Pinnacle Airlines Corp), Airline Services Agreement (Mair Holdings Inc)
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Loan Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Loan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Ownerthe Company's title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, maintenance or maintenance, overhaul work on or other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or any Permitted Lessee Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or any Engine to the CRAF Program or transfer possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided, that the Company (A) shall promptly notify the Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Military Airlift Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to the Company (or any Permitted Lessee) or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, lessor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Loan Trustee (it being understood that an agreement from such lessor or secured party substantially in the form of the final sentence of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Loan Trustee), whereby such Person lessor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding the installation thereof on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02
(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation shall adversely affect the Loan Trustee's security interest in such Engine, the Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Company with Section 7.05(b);
(viviii) Transfer lease any Engine or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; and
(ix) lease any Engine or the Airframe and Engines to (A) any foreign air carrier other than those set forth in clause (B), (B) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto and (C) any foreign air carrier consented to in writing by the Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (x) in the case of a lease to a foreign air carrier under clause (A) above, Airframe the Loan Trustee receives at the time of such lease (1) written confirmation from each of the Rating Agencies that such lease would not result in a reduction of the rating for any class of Pass Through Certificates below the then current rating for such class of Pass Through Certificates or a withdrawal or suspension of the rating of any Engine class of Pass Through Certificates and (2) an opinion of counsel to the U.S. GovernmentCompany (such counsel to be reasonably satisfactory to the Loan Trustee) to the effect that there exist no possessory rights in favor of the lessee under the laws of such lessee's country which would, in which event Owner shall promptly notify Mortgagee in writing upon bankruptcy or insolvency of or other default by the Company and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by the Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by the Loan Trustee of its remedies under Section 4.02, (y) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains diplomatic relations with the country in which such foreign air carrier is based at the time such lease is entered into and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including the Loan Trustee's rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture is enforceable to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer or possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and (c) or (y) permit any action not permitted to be taken by the Company with respect to the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. The Loan Trustee, and each Noteholder by acceptance of an Equipment Note, agrees, for the benefit of the lessor or secured party of any airframe or engine leased to the Company (or any Permitted Lessee) or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Loan Trustee and the Noteholders will not acquire or claim, as against such Permitted Air Carrier lessor or secured party, any right, title or interest in (A) any engine or engines owned by the lessor under applicable law;such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the lessor under such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is subject to such lease or conditional sale or other security agreement. The Loan Trustee acknowledges that any "wet lease" or other similar arrangement under which the Company maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 2 contracts
Samples: Indenture and Security Agreement (American Airlines Inc), Indenture and Security Agreement (American Airlines Inc)
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Collateral Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraftany Airframe, the Airframe or any Engine or Part, install any Engine, or permit any Engine to be installed, on installed in any airframe other than the AirframeAirframes or enter into any Wet Lease; except provided that so long as no Default of the Owner type referred to in Sections 8(a) or (f) of the Credit Agreement or Event of Default shall have occurred and be continuing at the time of such lease, delivery, transfer or relinquishment of possession or installation or such Wet Lease, so long as the action to be taken shall not deprive the Collateral Agent of the first priority Lien (subject to Permitted Liens) of this Mortgage on the Collateral and so long as the Company (or any Lessee) shall comply with the provisions of Sections 3.2(c) and 3.6 hereof, the Company may, without such the prior written consent of Mortgageethe Collateral Agent:
(i) Subject subject any Airframe or permit any Permitted Lessee to subject (i) the Engine or engines installed on an Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements pooling or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company (or such Permitted any Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that if Owner's (A) no such agreement or arrangement contemplates or requires the transfer of title to any such Airframe, (B) if the Company’s title to any Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of with respect to such Engine and the date of such divestiture, and Owner Company shall (or shall cause Lessee to) comply with Section 4.04(e3.4(e) hereof in respect thereof, and (C) any interchange agreement to which the Airframes may be subject shall be with a U.S. Air Carrier or a Foreign Air Carrier;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or Engine or any Part (x) to the manufacturer thereof (or for delivery thereto) or to any third-party maintenance provider organization (or for delivery thereto) for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any such Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, such Airframe or any Engine to the extent required or (ypermitted by the terms of Section 3.4(d) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)hereof;
(iii) Install or permit install any Permitted Lessee to install an Engine on an airframe which is owned by Owner the Company (or such Permitted any Lessee, as the case may be, ) free and clear of all Liens, except except: (xA) Permitted Liens and those that do not which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (yother than Parts) installed on such airframe (but not to the airframe as an entirety), (B) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that which would be permitted under Section 4.02(b)(iclause (i) above provided that the Company’s title to any such Engine and the first priority Lien of this Mortgage shall not be divested or impaired as a result thereof and (C) mortgage liens or other security interests, provided that (as regards this subclause (C)) such mortgage liens or other security interests effectively provide that such Engine shall not become subject to such mortgage or security interest, notwithstanding the installation thereof on such airframe;
(iv) Install or permit install any Permitted Lessee to install an Engine on an airframe which is leased to Owner the Company (or such Permitted any Lessee, ) or purchased by Owner the Company (or such Permitted Lessee any Lessee) subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if provided that (x) such airframe is free and clear of all Liens, except except: (A) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir assignees, covering such airframe and (B) Liens of the type permitted by clause (iii) above of this Section 3.2(a) and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), whereby such Person agrees effectively provides that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is shall not become subject to the Lien lien of this Trust Indenturesuch lease, conditional sale or other security agreement, notwithstanding the installation thereof on such airframe;
(v) Install or permit install any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such Permitted any Lessee), leased to Owner the Company (or such Permitted any Lessee, ) or purchased by Owner the Company (or such Permitted Lessee any Lessee) which is subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or nor clause (iv) above of this Section 3.2(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner that the Company shall (or shall cause any Lessee to) comply with Section 4.04(e3.4(e) hereof in respect thereof, the Collateral Agent not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Company with such Section 3.4(e);
(vi) Transfer to the extent permitted by Section 3.4(c) hereof, subject any appliances, Parts or other equipment owned by the Company and removed from any Airframe or Engine to any pooling arrangement referred to in such Section;
(vii) subject (or permit any Permitted Lessee to transfer possession of the Aircraft, subject) any Airframe or any Engine to the U.S. GovernmentCivil Reserve Air Fleet Program and transfer (or permit any Lessee to transfer) possession of any Airframe or Engine to the United States of America or any instrumentality or agency thereof pursuant to the Civil Reserve Air Fleet Program, in which event Owner so long as the Company (or any Lessee) shall (A) promptly notify Mortgagee the Collateral Agent upon subjecting such Airframe or Engine to the Civil Reserve Air Fleet Program in writing any contract year and provide the Collateral Agent with the name and address of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Air Mobility Command of the United States Air Force to whom notices notice must be given pursuant to Section 4.2 hereof, and to whom requests (B) promptly notify the Collateral Agent upon transferring possession of the Airframe or claims must be made any Engine to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft United States of America or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any agency or instrumentality thereof pursuant to such charter or Wet Lease or other similar arrangementprogram;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease Wet Lease for any Airframe or engines then installed thereon with respect any third party, provided that if the Company (or any Lessee) shall enter into any Wet Lease for a period of more than one year (including renewal options) the Company shall provide to the AircraftCollateral Agent written notice of such Wet Lease (such notice to be given prior to entering into such Wet Lease, Airframe or if practicable, but in any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the event promptly after entering into such Wet Lease);
(ix) transfer possession of any liquidator, trustee, receiver Airframe or similar person; PROVIDED THAT, in Engine to the case only United States of a lease America or any instrumentality or agency thereof pursuant to a Permitted Foreign contract, a copy of which shall be provided to the Collateral Agent, or
(x) enter, any time, into any lease of any Airframe or Engine with (A) a U.S. Air Carrier, (B) any Person approved in writing by the Collateral Agent (with the approval of the Required Lenders), (C) any Permitted Lessee, or (D) any airline alliance partner of the Company that otherwise meets the requirement of (A), (B) or (C) above or has been previously approved in writing by the Collateral Agent, in any such case, if (1) the lessee under such lease is not subject to a proceeding or final order under applicable bankruptcy, insolvency or reorganization laws on the date such lease is entered into, (2) in the event that the lessee under such lease is a Foreign Air Carrier (other than a Foreign Air Carrier principally based in Taiwan), the United States maintains diplomatic relations with the country of domicile of in which such Permitted Foreign Air Carrier is principally based at the time such lease is entered into (or, in the case of a lease to a lessee principally based in Taiwan, maintains diplomatic relations at least as good as those in effect on the Closing Effective Date) and (B3) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of event that the lessee under such Permitted lease is a Foreign Air Carrier, the Collateral Agent shall receive at the time such lease is entered into an opinion of counsel (in form and substance reasonably satisfactory to the Collateral Agent) to the Company to the effect that (vI) the terms of the proposed lease will be legal, valid, binding and (subject to customary exceptions in foreign opinions generally) enforceable against the proposed lessee in the country in which the proposed lessee is principally based, (II) there exist no possessory rights in favor of the lessee under such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionlessee’s country of domicile that would, upon bankruptcy or insolvency of or other default by the Company and assuming at such time such lessee is not insolvent or bankrupt, prevent the return or repossession of the Aircraft in accordance with the terms of this Mortgage, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (yIII) the Laws laws of such jurisdiction lessee’s country of domicile require fair compensation by the government of such jurisdiction, jurisdiction payable in a currency freely convertible into Dollars, Dollars for the loss of title to use of the Aircraft, Airframe or Engines Aircraft in the event of the requisition by such government of such title use, and (unless Owner shall provide insurance in IV) the amounts required with respect laws of such lessee’s country of domicile would give recognition to hull insurance under this Trust Indenture covering the requisition of Company’s title to the Aircraft, to the registry of the Aircraft in the name of the Company (or the proposed lessee, as “lessee,” as appropriate), and to the Lien of this Mortgage. The rights of any Lessee or other transferee who receives possession by reason of a transfer permitted by this Section 3.2(a) (other than the transfer of an Engine which is deemed an Event of Loss) shall be effectively subject and subordinate to, and any lease permitted by this Section 3.2(a) shall be expressly subject and subordinate to, all the terms of this Mortgage and to the Lien of this Mortgage, including, without limitation, the covenants contained in this Section 3.2 and the Collateral Agent’s rights to foreclosure and possession pursuant to Section 4.2 hereof and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance of all of the terms of this Mortgage to the same extent as if such lease or transfer had not occurred, and, except as otherwise provided herein, the terms of any such lease shall not permit any Lessee to take any action not permitted to be taken by the Company in this Mortgage with respect to the Aircraft. No pooling agreement, lease or other relinquishment of possession of any Airframe or Engines Engine, or Wet Lease shall in any way discharge or diminish any of the Company’s obligations to the Collateral Agent hereunder or constitute a waiver of the Collateral Agent’s rights or remedies hereunder. Any lease permitted under this Section 3.2(a) shall expressly prohibit any further sublease by the government Lessee. The Collateral Agent agrees, for the benefit of the Company (and any Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine) owned by the Company (or any Lessee), any lessor of any engine (other than an Engine) leased to the Company (or any Lessee) and any conditional vendor of any engine (other than an Engine) purchased by the Company (or any Lessee) subject to a conditional sale agreement or any other security agreement, that no interest shall be created hereunder in any engine so owned, leased or purchased and that neither the Collateral Agent nor its successors or assigns will acquire or claim, as against the Company (or any Lessee) or any such mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine as the result of such jurisdiction so long as engine being installed on the AircraftAirframes; provided, Airframe however, that such agreement of the Collateral Agent shall not be for the benefit of any lessor or Engines are secured party of any airframe (other than the Airframes) leased to the Company (or any Lessee) or purchased by the Company (or any Lessee) subject to a conditional sale or other security agreement or for the benefit of any mortgagee of or any other holder of a security interest in an airframe owned by the Company (or any Lessee), unless such lessor, conditional vendor, other secured party or mortgagee has expressly agreed (which agreement may be contained in such lease, conditional sale or other security agreement or mortgage) that neither it nor its successors or assigns will acquire, as against the Collateral Agent, any right, title or interest in an Engine as a result of such Engine being installed on such airframe. The Company shall provide to the Collateral Agent (i) written notice of any lease hereunder (such notice to be given not later than five days prior to entering into such lease) and (zii) the agreement a copy of such Permitted Air Carrier that its rights under the each lease are subject and subordinate to all the terms which has a term of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;more than three months.
Appears in 2 contracts
Samples: Aircraft Mortgage and Security Agreement (Northwest Airlines Corp), Aircraft Mortgage and Security Agreement (Northwest Airlines Corp)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;
Appears in 2 contracts
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/), Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Possession. The Owner, without Without the prior written consent of MortgageeLoan Trustee, Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided that Company (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if OwnerCompany's title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject (or permit any Permitted Lessee to subject) the Airframe or any Engine to the CRAF Program or transfer (or permit any Permitted Lessee to transfer) possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided, that Company (or any Permitted Lessee) (A) shall promptly notify Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify Loan Trustee of the name and address of the responsible Contracting Office Representative for the Military Airlift Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as the case may be, shall have received either: (1) Company has obtained from the lessor, mortgagee, lessor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to Loan Trustee (an agreement from such lessor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to Loan Trustee), whereby such Person lessor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee), leased to Owner Company (or such any Permitted Lessee, ) or purchased by Owner Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02
(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation adversely affects Loan Trustee's security interest in such Engine, Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Company with Section 7.05(b);
(viviii) Transfer lease any Engine or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; and
(ix) lease any Engine or the Airframe and Engines to (A) any foreign air carrier other than those set forth in clause (B), (B) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (C) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) and (D) any foreign air carrier consented to in writing by Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (x) in the case of a lease to a foreign air carrier under clause (A) above, Loan Trustee receives at the time of such lease (1) written confirmation from each of the Rating Agencies that such lease would not result in a reduction of the rating for any class of Pass Through Certificates below the then current rating for such class of Pass Through Certificates or a withdrawal or suspension of the rating of any class of Pass Through Certificates, without regard to the U.S. GovernmentPolicy (as defined in the Policy Provider Agreement) and (2) an opinion of counsel to Company (such counsel to be reasonably satisfactory to Loan Trustee) to the effect that there exist no possessory rights in favor of the lessee under the laws of such lessee's country which would, in which event Owner shall promptly notify Mortgagee in writing upon bankruptcy or insolvency of or other default by Company and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, (y) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains diplomatic relations with the country in which such foreign air carrier is based at the time such lease is entered into and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including Loan Trustee's rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture is enforceable to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and (c) or (y) permit any action not permitted to be taken by Company with respect to the Aircraft hereunder. Company shall promptly notify Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. Loan Trustee, and each Noteholder by acceptance of an Equipment Note, agrees, for the benefit of Company (and any Permitted Lessee) and for the benefit of the lessor or secured party of any airframe or engine leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that Loan Trustee and Noteholders will not acquire or claim, as against Company (or any Permitted Lessee) or such lessor or secured party, any right, title or interest in: (A) any engine or engines owned by Company (or any Permitted Air Carrier Lessee) or by the lessor under applicable law;such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe, or (B) any airframe owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of any Engine being installed on such airframe. Loan Trustee acknowledges that any "wet lease" or other similar arrangement under which Company (or any Permitted Lessee) maintains operational control of the Aircraft does not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 2 contracts
Samples: Indenture and Security Agreement (Delta Air Lines Inc /De/), Indenture and Security Agreement (Delta Air Lines Inc /De/)
Possession. The Owner, without Without the prior written consent of MortgageeLoan Trustee, Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided that Company (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements interchange, pooling, borrowing or pooling other similar agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(eSection 7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part to (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine terms hereof or (y) to any Person for the purpose purposes of transport to a Person referred to in the preceding clause (x);
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or any Engine to the CRAF Program or transfer possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that Company (or any Permitted Lessee Lessee) (A) shall promptly notify Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange, pooling, borrowing or other similar agreements or arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a lease, conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iii(v) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as the case may be, shall have received either: (1) Company has obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form reasonably satisfactory to Loan Trustee (an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee), leased to Owner Company (or such any Permitted Lessee, ) or purchased by Owner Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iii(v) or (ivnor clause (vi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Company shall comply with Section 4.04(eSection 7.05(b) hereof in respect thereof, if such installation adversely affects Loan Trustee’s security interest in such Engine, Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Company with Section 7.05(b);
(viviii) Transfer lease any Engine, the Airframe or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code or successor provision that gives like authority; provided that no Event of Default exists at the time such lease is entered into; and
(ix) lease any Engine, the Airframe or the Airframe and Engines to (A) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (B) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) or (C) any foreign air carrier consented to in writing by Loan Trustee with the U.S. Governmentconsent of a Majority in Interest of Noteholders; provided that (w) no Event of Default exists at the time such lease is entered into, (x) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains normal diplomatic relations with the country in which event Owner shall promptly notify Mortgagee such foreign air carrier is based at the time such lease is entered into and in writing the case of a lease to a foreign air carrier principally based in Taiwan, the United States maintains diplomatic relations with Taiwan at least as good as those on the Closing Date, (y) in the case of a lease to any foreign air carrier, Company furnishes Loan Trustee with a certificate from a Responsible Officer of Company certifying that there exist no possessory rights in favor of such lessee under the laws of such lessee’s country which would, upon bankruptcy or insolvency of or other default by Company, and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Sections 7.02(b) and (c) or (y) permit any action not permitted to be taken by Company with respect to the Aircraft hereunder. Company shall promptly notify Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. Loan Trustee, each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note agrees, for the benefit of Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to Company (or any Permitted Lessee) or leased to or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that Loan Trustee, Noteholders and Related Noteholders will not acquire or claim, as against Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in: (A) any engine or engines owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement, or (B) any airframe owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such lease or conditional sale or other security agreement. Loan Trustee acknowledges that any “wet lease” or other similar arrangement under which Company (or any Permitted Air Carrier under applicable law;Lessee) maintains operational control of the Aircraft does not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 2 contracts
Samples: Indenture and Security Agreement (Fedex Corp), Indenture and Security Agreement (Fedex Corp)
Possession. The OwnerCompany, without the prior consent of MortgageeCollateral Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the any Aircraft, the Airframe any Airframe, any Engine or any Spare Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the an Airframe; , except that the Owner Company may, without such prior written consent of MortgageeCollateral Agent:
(i) Subject subject or permit any Permitted Lessee to subject (i) the any Airframe to normal interchange agreements or (ii) any Engine or any Spare Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's the Company’s title to any such Engine or Spare Engine is divested under any such agreement or arrangement, then such Engine or Spare Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner Company shall comply with Section 4.04(e3.04(e) in respect thereof;
(ii) Deliver deliver or permit any Permitted Lessee to deliver possession of the any Aircraft, any Airframe, any Engine, any Spare Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the any Aircraft, any Airframe, any Engine, any Spare Engine or any Part, or, to the extent required or permitted by Section 4.04the terms hereof, for alterations or modifications in or additions to the any Aircraft, Airframe any Airframe, any Engine or any Spare Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install install or permit any Permitted Lessee to install an Engine or Spare Engine on an airframe owned by Owner the Company or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines or the Spare Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i3.02(b)(i);
(iv) Install install or permit any Permitted Lessee to install an Engine or Spare Engine on an airframe leased to Owner the Company or such Permitted Lessee, or purchased by Owner the Company or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner the Company or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine or such Spare Engine by reason of such Engine or such Spare Engine being installed on such airframe at any time while such Engine or such Spare Engine is subject to the Lien of this Trust IndentureC Mortgage;
(v) Install install or permit any Permitted Lessee to install an Engine or Spare Engine on an airframe owned by Owner the Company or such Permitted Lessee, leased to Owner the Company or such Permitted Lessee, or purchased by Owner the Company or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine or Spare Engine, as the case may be, and Owner the Company shall comply with Section 4.04(e3.04(e) hereof in respect thereof;
(vi) Transfer transfer or permit any Permitted Lessee to transfer possession of the any Aircraft, Airframe any Airframe, any Engine or any Spare Engine to the U.S. Government, in which event Owner the Company shall promptly notify Mortgagee the Collateral Agent in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter to the extent permitted by Section 3.04(c) hereof, subject any appliances, Parts or other equipment owned by the Company and removed from any Airframe, any Engine or any Spare Engine to any pooling arrangement referred to in Section 3.04(c) hereof;
(viii) enter into a charter or Wet Lease or other similar arrangement with respect to the any Aircraft or any other aircraft on which any Engine or Spare Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's Company’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viiiix) So so long as no Event of Default shall have occurred and be continuing, continuing and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the any Aircraft, Airframe any Airframe, any Engine or any Spare Engine to with any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar personperson (a “Permitted Lessee”); PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) on the date of such lease the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner Company shall have furnished Mortgagee the Collateral Agent a favorable opinion of counsel, reasonably satisfactory to Mortgageethe Collateral Agent, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (w) it is not necessary for Mortgagee the Collateral Agent to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's the Collateral Agent’s Lien in respect of, of the Aircraft, Airframe and Airframes, Engines or Spare Engines, as the case may be, will be recognized as a first priority (subject to Permitted Liens) security interest and enforceable in such jurisdictionjurisdiction (including the Collateral Agent’s right to repossess such Aircraft), (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe Airframes, Engines or Engines Spare Engines, as the case may be, in the event of the requisition by such government of such title (unless Owner Company shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture C Mortgage covering the requisition of title to the Aircraft, Airframe Airframes, Engines or Spare Engines by the government of such jurisdiction so long as the Aircraft, Airframe Airframes, Engines or Spare Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture C Mortgage is enforceable against such Permitted Air Carrier under applicable law;law (subject to customary exceptions); provided that (1) the rights of any Permitted Lessee or other transferee who receives possession by reason of a transfer permitted by this Section 3.02(b) (other than by a transfer of an Engine or Spare Engine which is deemed an Event of Loss) shall be subject and subordinate to, and any lease permitted by this paragraph (b) shall be expressly subject and subordinate to, all the terms of this C Mortgage, (2) the Company shall remain primarily liable for the performance of all of the terms of this C Mortgage and all the terms and conditions of this C Mortgage and the other Transaction Documents shall remain in effect, (3) the Company shall furnish to the Collateral Agent evidence reasonably satisfactory to the Collateral Agent that the insurance required pursuant to Section 3.06 remains in effect and such Permitted Lease shall require such insurance to remain in effect throughout the term thereof; (4) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest (subject to Permitted Liens) and International Interest of the Collateral Agent in the Aircraft, Airframes, Engines or Spare Engines, as the case may be; (5) the Company shall reimburse the Collateral Agent for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by the Collateral Agent in connection with any such lease; and (6) the Company shall ensure that no lease or transfer of possession otherwise in compliance with this Section 3.02(b) shall permit any action not permitted to the Company hereunder. Except as otherwise provided herein and without in any way relieving the Company from its primary obligation for the performance of its obligations under this C Mortgage, the Company may in its sole discretion permit a Permitted Lessee (but not a sublessee) to exercise any or all rights which the Company would be entitled to exercise under Sections 3.02 and 3.04, and may cause a Permitted Lessee (but not a sublessee) to perform any or all of the Company’s obligations under Article III hereof, and the Collateral Agent agrees to accept actual and full performance thereof by a Permitted Lessee (but not a sublessee) in lieu of performance by the Company. The Company shall promptly, but not later than 10 Business Days after entering into such Permitted Lease, notify the Collateral Agent of the existence of such Permitted Lease with a term in excess of one year and provide a copy of such lease to the Collateral Agent. No pooling agreement, Permitted Lease or other relinquishment of possession of any Airframe, any Engine or any Spare Engine shall in any way discharge or diminish any of the Company’s obligations to the Collateral Agent under this C Mortgage or constitute a waiver or forbearance of Collateral Agent’s rights or remedies hereunder. The Collateral Agent agrees, and each Holder by acceptance of a Security agrees, for the benefit of the Company (and any Permitted Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine or Spare Engine) owned by the Company (or any Permitted Lessee), any lessor of any engine (other than an Engine or Spare Engine) leased to the Company (or any Permitted Lessee) and any conditional vendor of any engine (other than an Engine or Spare Engine) purchased by the Company (or any Permitted Lessee) subject to a conditional sale agreement or any other security agreement, that no interest shall be created under this C Mortgage in any engine so owned, leased or purchased and that none of the Collateral Agent, the Holders or their successors or assigns will acquire or claim, as against the Company (or any Permitted Lessee) or any such mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine (other than an Engine or Spare Engine) as the result of such engine being installed on such Airframe. Any Wet Lease or similar arrangement under which the Company maintains operational control of the relevant Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 3.02. The Collateral Agent acknowledges that any consolidation or merger of the Company or conveyance, transfer or lease of all or substantially all of the Company’s assets permitted by the Operative Documents shall not be prohibited by this Section 3.02.
Appears in 2 contracts
Samples: Mortgage and Security Agreement (Ual Corp /De/), Mortgage and Security Agreement (United Air Lines Inc)
Possession. The Owner, without Without the prior written consent of MortgageeLoan Trustee, Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided that Company (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements interchange, pooling, borrowing or pooling other similar agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part to (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine terms hereof or (y) to any Person for the purpose purposes of transport to a Person referred to in the preceding clause (x);
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or any Engine to the CRAF Program or transfer possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that Company (or any Permitted Lessee Lessee) (A) shall promptly notify Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange, pooling, borrowing or other similar agreements or arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a lease, conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as the case may be, shall have received either: (1) Company has obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form satisfactory to Loan Trustee (an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee), leased to Owner Company (or such any Permitted Lessee, ) or purchased by Owner Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation adversely affects Loan Trustee’s security interest in such Engine, Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Company with Section 7.05(b);
(viviii) Transfer lease any Engine, the Airframe or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; provided that no Event of Default exists at the time such lease is entered into; and
(ix) lease any Engine, the Airframe or the Airframe and Engines to (A) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (B) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) and (C) any foreign air carrier consented to in writing by Loan Trustee with the U.S. Governmentconsent of a Majority in Interest of Noteholders; provided that (w) no Event of Default exists at the time such lease is entered into, (x) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains normal diplomatic relations with the country in which event Owner shall promptly notify Mortgagee such foreign air carrier is based at the time such lease is entered into and in writing the case of a lease to a foreign air carrier principally based in Taiwan, the United States maintains diplomatic relations with Taiwan at least as good as those on the Closing Date, (y) in the case of a lease to any foreign air carrier, Company furnishes Loan Trustee with a certificate from a Responsible Officer of Company certifying that there exist no possessory rights in favor of such lessee under the laws of such lessee’s country which would, upon bankruptcy or insolvency of or other default by Company, and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Sections 7.02(b) and (c) or (y) permit any action not permitted to be taken by Company with respect to the Aircraft hereunder. Company shall promptly notify Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. Loan Trustee, each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note agrees, for the benefit of Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to Company (or any Permitted Lessee) or leased to or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that Loan Trustee, Noteholders and Related Noteholders will not acquire or claim, as against Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in: (A) any engine or engines owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement, or (B) any airframe owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such lease or conditional sale or other security agreement. Loan Trustee acknowledges that any “wet lease” or other similar arrangement under which Company (or any Permitted Air Carrier under applicable law;Lessee) maintains operational control of the Aircraft does not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 2 contracts
Samples: Indenture and Security Agreement (Jetblue Airways Corp), Indenture and Security Agreement (Jetblue Airways Corp)
Possession. The Owner, without Without the prior written consent of MortgageeLoan Trustee, Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided that Company (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements interchange, pooling, borrowing or pooling other similar agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part to (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine terms hereof or (y) to any Person for the purpose purposes of transport to a Person referred to in the preceding clause (x);
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or any Engine to the CRAF Program or transfer possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that Company (or any Permitted Lessee Lessee) (A) shall promptly notify Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange, pooling, borrowing or other similar agreements or arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a lease, conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as the case may be, shall have received either: (1) Company has obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form satisfactory to Loan Trustee (an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee), leased to Owner Company (or such any Permitted Lessee, ) or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause by
(iiia) or (iv) above is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation adversely affects Loan Trustee’s security interest in such Engine, Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Company with Section 7.05(b);
(viviii) Transfer lease any Engine, the Airframe or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; provided that no Event of Default exists at the time such lease is entered into; and
(ix) lease any Engine, the Airframe or the Airframe and Engines to (A) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (B) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) and (C) any foreign air carrier consented to in writing by Loan Trustee with the U.S. Governmentconsent of a Majority in Interest of Noteholders; provided that (w) no Event of Default exists at the time such lease is entered into, (x) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains normal diplomatic relations with the country in which event Owner shall promptly notify Mortgagee such foreign air carrier is based at the time such lease is entered into and in writing the case of a lease to a foreign air carrier principally based in Taiwan, the United States maintains diplomatic relations with Taiwan at least as good as those on the Closing Date, (y) in the case of a lease to any foreign air carrier, Company furnishes Loan Trustee with a certificate from a Responsible Officer of Company certifying that there exist no possessory rights in favor of such lessee under the laws of such lessee’s country which would, upon bankruptcy or insolvency of or other default by Company, and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Sections 7.02(b) and (c) or (y) permit any action not permitted to be taken by Company with respect to the Aircraft hereunder. Company shall promptly notify Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. Loan Trustee, each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note agrees, for the benefit of Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to Company (or any Permitted Lessee) or leased to or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that Loan Trustee, Noteholders and Related Noteholders will not acquire or claim, as against Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in: (A) any engine or engines owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement, or (B) any airframe owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such lease or conditional sale or other security agreement. Loan Trustee acknowledges that any “wet lease” or other similar arrangement under which Company (or any Permitted Air Carrier under applicable law;Lessee) maintains operational control of the Aircraft does not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 2 contracts
Samples: Indenture and Security Agreement (Jetblue Airways Corp), Indenture and Security Agreement (Jetblue Airways Corp)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Special Default or Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee and Second Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee and Second Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee or Second Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's and Second Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner's possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner's obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Note Holder by acceptance of an Equipment Note agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Southwest Airlines Co)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);; TRUST INDENTURE 2020-1
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) To the extent permitted by Section 4.04(c) hereof, subject any appliances, Parts or other equipment owned by Owner and removed from the Airframe, or any Engine, to any pooling arrangement referred to in Section 4.04(c) hereof;
(viii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viiiix) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not TRUST INDENTURE 2020-1 then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee or Permitted Lessee who receives possession by reason of a transfer permitted by any of clauses (i) through (ix) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will comply with the notice requirement of Section 6.1.5 of the Participation Agreement and will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 TRUST INDENTURE 2020-1 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Any Wet Lease or similar arrangement under which Owner maintains operational control of the Aircraft shall not constitute a deliver, transfer or relinquishment of possession of the Aircraft for purposes of this Section 4.02. Mortgagee hereby agrees, and each Note Holder and Related Note Holder by acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and Related Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the any Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the any Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline aviation industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e2.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the any Aircraft, any Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the such Aircraft, such Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, 2.04 for alterations or modifications in or additions to the such Aircraft, such Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i2.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e2.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the any Aircraft, Airframe or any Engine to the U.S. GovernmentGovernment pursuant to CRAF, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the any Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the any Aircraft, any Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the such Aircraft, such Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the such Aircraft, such Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture Mortgage covering the requisition of title to the such Aircraft, such Airframe or Engines by the government of such jurisdiction so long as the such Aircraft, such Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Mortgage and the related EETC Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 2.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Mortgage and the related EETC Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Mortgage and all the terms and conditions of this Mortgage and the other Loan Documents shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 2.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 2.02(d) or the maintenance, operation or use thereof except in compliance with Sections 2.02(c) and 2.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 2.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Mortgage and the related EETC Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 2.06; and (v) require that any Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Mortgage. No lease permitted under this Section 2.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 2.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the security interest and International Interest (subject to Permitted Liens) of Mortgagee in such Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its actual out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Mortgage, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 2.02 and 2.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article II, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Lender, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, Mortgage or other security agreement that Mortgagee, each Lender and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on any Airframe at any time while such engine is subject to such lease, conditional sale, Mortgage or other security agreement and owned by such lessor or conditional seller or subject to a Mortgage or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Samples: Aircraft Mortgage and Security Agreement (Wheels Up Experience Inc.)
Possession. The OwnerCompany will not, without the prior written consent of MortgageeAdministrative Agent, shall not sell, assign, lease or otherwise in any manner deliver, transfer or relinquish possession or control of, or transfer the right, title or interest of the AircraftCompany in, the Airframe or any Engine or install any Engineexcept that, or permit any Engine to unless a Potential Event of Default shall have occurred and be installedcontinuing, on any airframe other than Company may without the Airframe; except that the Owner may, without such prior written consent of MortgageeAdministrative Agent:
(i) Subject transfer possession of the Airframe or permit any Permitted Lessee Engine other than by lease to the United States of America or any instrumentality thereof pursuant to the Civil Reserve Air Fleet Program (as administered pursuant to Executive Order 12656, or any substitute order) or any similar or substitute programs;
(ii) transfer possession of the Airframe or any Engine to the manufacturer thereof for testing or other similar purposes or any other organization for service, repairs, maintenance or overhaul or, to the extent permitted by Section 4(e) hereof, for alterations or modifications;
(iii) subject (i) the Airframe to normal interchange agreements with Domestic Carriers or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case arrangements of the type customary in the commercial United States airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of business; PROVIDEDbusiness which do not contemplate or require the transfer of title to, HOWEVERuse for the remainder of its useful life, that or registration of the Airframe or title to or use for the remainder of its useful life of such Engine and if OwnerCompany's title to or use for the remainder of its useful life, of the Airframe or any such Engine is Engines shall be divested under any such agreement or arrangement, then such Engine divesture shall be deemed to have suffered be an Event of Loss as of with respect to the date of Airframe or such divestiture, Engine and Owner Company shall comply with Section 4.04(e4(f) in respect thereof;
(iiiv) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe which is owned by Owner or such Permitted Lessee, as the case may be, Company free and clear of all Liens, Liens except (xA) those permitted under clauses (i) or (ii) of the definition of Permitted Liens and Encumbrances in the Credit Agreement, (B) those that do not apply only to the engines (other than the Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety), and (yC) the rights of third parties any Domestic Carrier, under normal interchange agreements which are customary in the airline industry and do not contemplate or pooling agreements and arrangements require the transfer of title to such airframe or the type that would be permitted under Section 4.02(b)(i);engines installed thereon; 196
(ivv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Company or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee Company subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if provided: (xA) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe and (B) except Liens of the type permitted by clause (iiiiv) above above; and (yB) Owner or Permitted Lessee, as the case may be, Administrative Agent shall have received from the lessor, mortgagee, conditional vendor or secured party or conditional sellerand each of the purchasers, in respect mortgagees and encumbrancers of such airframelessor, conditional vendor or secured party of such airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale agreement or other agreement mortgage covering such airframe), whereby such Person lessor, conditional vendor or secured party and each of the purchasers, mortgagees and encumbrancers of such lessor, conditional vendor or secured party expressly and effectively agrees that neither it nor its successors and assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while when such Engine is subject to the Lien of this Trust IndentureMortgage;
(vvi) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted LesseeCompany, leased to Owner by Company or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee Company subject to a conditional sale or other security agreement under circumstances where neither clause (iiiiv) or nor clause (ivv) above is applicable; PROVIDED, HOWEVER, provided that any divesture of title to such Engine resulting from such installation shall be deemed to be an Event of Loss with respect to such Engine, Engine and Owner Company shall comply with Section 4.04(e4(f) hereof in respect thereof;
(vivii) Transfer lease any Engine and/or the Airframe to a Domestic Air Carrier other than an ACMI Contract or permit wet lease permitted under clause (ix) below, in the ordinary course of its business, for a term (including without limitation, any Permitted Lessee to transfer possession option of the Aircraftlessee to renew or extend) not to exceed six (6) months (in the case of a lease of an Engine without the Airframe, not to exceed twelve (12) months), provided that (A) no such lease contemplates or requires the transfer of title to or registration of the Airframe or title to any Engine, (B) if Company's title to any Engine or the Airframe shall be divested under any such agreement or arrangement, such divestiture shall be deemed to be an Event of Loss for all purposes, (C) any such lease shall provide that the lessee may not deliver, transfer or relinquish possession or sublease the Airframe or any Engine without the prior written consent of Administrative Agent, other than as permitted by Section 4(d)(i), (ii) or (iii) hereof, (D) the lease agreement shall provide that any amounts payable by the lessee to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant Company thereunder are assigned hereunder to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives Administrative Agent for the Military Airlift Command benefit of the United States Air Force to whom notices must be given Lenders and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no that if an Event of Default has occurred and is continuing, upon notice to the lessee by Administrative Agent, the lessee shall pay all such amounts to Administrative Agent for the benefit of Lenders unless and until such lessee shall have occurred received notice from Administrative Agent for the benefit of Lenders, that the Event of Default has been cured, (E) the lease agreement shall provide that the lessee shall agree to maintain and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or operate any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property and/or the Airframe in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (Aaccordance with Section 4(c) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;hereof,
Appears in 1 contract
Samples: Credit Agreement (Atlas Air Inc)
Possession. The OwnerBorrower will not, without the prior written consent of Mortgageethe Bank, shall which consent will not be unreasonably withheld and for which no fee or other amount (other than as expressly provided for hereunder) will be required, lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or any part thereof or any part of the Borrower's rights hereunder to any Person or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that PROVIDED, HOWEVER, that, so long as no Default or Event of Default shall have occurred and be continuing,and so long as the Owner Borrower shall comply with the provisions of Section 7.1 hereof, the Borrower may, without such the prior written consent of Mortgageethe Bank:
(i1) Subject subject any Engine or permit any Permitted Lessee to subject (i) the Airframe Part to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Borrower in the ordinary course of its business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any PROVIDED no such agreement or arrangement, then arrangement contemplates or requires the transfer of title to such Engine or Part and PROVIDED FURTHER that, if Borrower relinquishes possession of an Engine under such an agreement or arrangement for a continuous period of more than 180 days, an Event of Loss shall be deemed to have suffered an Event of Loss as of the date of such divestiture, occurred with respect thereto and Owner Borrower shall comply with Section 4.04(e) in respect thereof7.2;
(ii2) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof or to overhaul agencies for testing or other similar purposes or to any third-party maintenance provider organization for testing, serviceservices, repair, maintenance or overhaul work on the Aircraft, Airframe, Airframe or any Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Airframe or any Engine to the extent required or permitted by the terms of Section 6.2(c) hereof;
(3) transfer possession of the Aircraft, Airframe or any Engine to the United States government or (y) to any Person for the purpose of transport instrumentality or agency thereof pursuant to a Person referred lease required to be entered into in accordance with applicable laws, rulings, regulations or orders, a copy of which lease shall be furnished to the preceding clause (x)Bank;
(iii4) Install transfer possession of the Aircraft, Airframe or permit any Permitted Lessee Engine to the United States government or any instrumentality or agency thereof when required in accordance with applicable laws, ruling, regulations or order;
(5) install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is Borrower free and clear of all Liens, except (A) those described in clauses (ii) and (iii) of the definition of Permitted Encumbrances, (B) those which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety), and (C) the rights of other United States certificated air carriers under normal interchange or pooling agreements or arrangements which are customary in the airline industry, and which do not contemplate, permit or require the transfer of title to such airframe or the engines installed on such Airframe;
(6) install an Engine on an airframe leased to the Borrower or purchased by the Borrower subject to a conditional sale or other security agreement; PROVIDED, HOWEVER, that (A) such airframe is free and clear of all Liens except the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe which insofar as they relate to such Engine are subordinate to the rights of the Bank hereunder or which expressly and effectively provide that each Engine shall not become subject to the lien thereof as to any rights of any party thereunder other than the Borrower, and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, Borrower shall have received from the lessor, mortgagee, lessor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, lease or conditional sale or other security agreement covering such airframe), a copy of which shall be provided to the Bank, whereby such Person lessor or secured party agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenturethe Security Agreement;
(v7) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lesseethe Borrower, leased to Owner or such Permitted Lessee, the Borrower or purchased by Owner or such Permitted Lessee the Borrower subject to a conditional sale or other security agreement under circumstances where neither clause subsection (iii5) or nor subsection (iv6) above of this Section 6.1(b) is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner the Borrower shall comply with Section 4.04(e) 7.2 hereof with respect to such Event of Loss, the Bank not intending hereby to waive any right or interest it may have to or in respect thereofsuch Engine under applicable law until compliance by the Borrower with said Section 7.2;
(vi) Transfer 8) lease any engine or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe and any Engines or any Engine engines then installed on such Airframe in the ordinary course of business to (A) a United States Certificated Air Carrier (a "PERMITTED AIR CARRIER") not the subject of petition filed under the Federal bankruptcy laws or other insolvency laws now or hereinafter in effect for use by such United States Certificated Permitted Air Carrier on its regularly scheduled or charter routes, or (B) a foreign permitted air carrier (as described in SCHEDULE E hereto (a "FOREIGN PERMITTED AIR CARRIER")) not the subject of a petition filed under bankruptcy or other insolvency laws now or hereafter in effect, for use by such Foreign Permitted Carrier in its regularly scheduled or charter routes; provided, however, that the Bank, upon request, shall receive satisfactory legal opinions to the U.S. Governmenteffect that, in which event Owner shall promptly notify Mortgagee in writing upon such lease, the Bank's rights under the Loan Documents will remain fully perfected; and
(9) enter into a wet lease or charter (whereby the Borrower provides flight crew, maintenance, ground crew, etc. for the benefit of any such transfer of possession and, lessee) in the case ordinary course of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (Borrower's business which shall not be considered a transfer of possession hereunder); PROVIDED THAT , provided that the OwnerBorrower's obligations hereunder under the Loan Documents shall continue in full force and effect notwithstanding any such charter wet lease or Wet Lease charter; PROVIDED, FURTHER, that the rights of any transferee who receives possession by reason of a transfer permitted by this Section (other than the transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to, and any lease permitted by this Section shall expressly prohibit any lease of the Airframe or such Engine by the lessee and shall be made expressly subject and subordinate to, all the terms of the Loan Documents, including, without limitation, the covenants contained in this Section, the Bank's rights to repossession pursuant to the Loan Documents, and Borrower shall remain primarily liable hereunder for the performance of all of the terms hereof to the same extent as if such transfer or lease had not occurred. No interchange agreement, lease or other similar arrangement;
(viii) So long as no Event relinquishment of Default shall have occurred and be continuing, and subject to the provisions possession of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine shall in any way discharge or diminish any of the Borrower's obligations to the Bank hereunder. In the event the Borrower shall have received from the lessor or secured party of any Permitted Air Carrier that is not then airframe leased to the Borrower or purchased by the Borrower subject to any bankruptcya conditional sale or other security agreement a written agreement complying with subsection (6) of this Section 6.1(b), insolvency, liquidation, reorganization, dissolution and the lease or similar proceeding and shall not have substantially all of its property in conditional sale or other security agreement covering such airframe also covers an engine or engines owned by the possession of any liquidator, trustee, receiver lessor under such lease or similar person; PROVIDED THAT, in the case only of a lease subject to a Permitted Foreign Air Carriersecurity interest in favor of the secured party under such conditional sale or other security agreement, (A) the United States maintains diplomatic relations with Bank hereby agrees for the country of domicile benefit of such Permitted Foreign Air Carrier (orlessor or secured party that the Bank will not acquire or claim, as against such lessor or secured party, any right, title or interest in any such engine as the case result of Taiwan, diplomatic relations at least as good as those in effect such engine being installed on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of Airframe at any time while such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it engine is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) lease or conditional sale or other security agreement and (z) the agreement owned by such lessor or subject to a security interest in favor of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;secured party. The Bank also hereby
Appears in 1 contract
Possession. The OwnerLessee shall not, without unless each of the prior consent of MortgageeLessor and the Finance Lessor, each in its absolute discretion, shall not lease or otherwise have given its prior written consent thereto, in any manner deliver, transfer or relinquish possession of the Aircraft, the any Airframe or any Engine Engine, pursuant to a sublease or otherwise, or install any Engine, or permit any Engine to be installed, on any airframe other than the an Airframe; except that provided, however, that, so long as no Specified Default or Lease Event of Default shall have occurred and be continuing, the Owner mayLessee shall be in compliance with Section 11 and all FAA approvals required for such purposes have been obtained and are in full force and effect, the Lessee may without such the prior written consent of Mortgageethe Lessor or the Finance Lessor:
(i) Subject deliver possession of any Airframe or permit any Permitted Lessee Engine or any Part to subject (i) the Airframe manufacturer thereof or to normal interchange agreements any qualified organization for testing, service, repair, maintenance, overhaul work or other similar purposes or for alterations or modifications or additions required or permitted by the terms of this Lease;
(ii) subject any Engine to normal interchange agreements or pooling agreements or arrangementsarrangements which are applicable to other similar property owned by or leased to the Lessee, in each case are customary in the commercial airline industry and are entered into by Owner or such Permitted Lessee, as the case may be, Lessee in the ordinary course of businessits airline business with a Certificated Air Carrier which is not then subject to any bankruptcy, reorganization or similar proceeding and which recognizes and gives effect to the rights and interests of Lessor and the Finance Lessor in and with respect to such Engine; PROVIDEDprovided that (A) no such agreement or arrangement shall under any circumstances result in, HOWEVER, that contemplate or require the transfer of title to or change of registration of any Aircraft or any Airframe and (B) if Owner's the Lessor’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of with respect to such Engine and the date of such divestiture, and Owner Lessee shall comply with Section 4.04(e10(b) in respect thereof;
(iiiii) Deliver or permit any install an Engine on another airframe owned by the Lessee free and clear of all Liens except (A) Permitted Lessee Liens referred to deliver possession in clauses (d), (e), (f) and (g) of the Aircraftdefinition thereof, Airframe(B) those which apply only to the engines (other than the Engines), any appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe, and (C) the rights of other air carriers under interchange or pooling agreements or other arrangements customary in the airline industry which do not contemplate, permit or require the transfer of title to such airframe or engines installed thereon;
(iv) install an Engine on an airframe leased to the Lessee or any Part purchased by the Lessee subject to a conditional sale or other security agreement if such Engine shall not thereby become subject to the lien of such lease, conditional sale or other security agreement, provided that (x) to the manufacturer thereof Lessee shall have received from the lessor, conditional vendor or to secured party in respect of such airframe an effective and enforceable written agreement whereby such Person agrees that such Person will not acquire (or the lease, conditional sale agreement or other security agreement expressly provides that such Person will not acquire) any third-party maintenance provider for testingright, servicetitle or interest in such Engine notwithstanding the installation thereof, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or and (y) to any Person for such airframe shall be free and clear of all Liens except the purpose rights of transport to a Person referred to the lessor, conditional vendor or secured party in respect of such airframe and Liens of the preceding clause type permitted by subparagraph (x)iii) above;
(iiiv) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted the Lessee, as leased by the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or nor clause (iv) above is applicable; PROVIDED, HOWEVER, provided that in the event of any such installation such Engine shall be deemed to have suffered an Event of Loss with respect to such Engine, and Owner the Lessee shall comply with Section 4.04(e) hereof in respect thereof10(b);
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, any Airframe or any Engine to the U.S. Government, in which event Owner United States of America or any instrumentality thereof pursuant to the Civil Reserve Air Fleet Program for any period that does not extent beyond the expiry of the Term so long as the Lessee shall promptly notify Mortgagee in writing the Lessor upon subjecting any Airframe or any Engine to such program and upon transferring possession of any such transfer of possession and, in the case of Airframe or any transfer Engine pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAFprogram;
(vii) Enter into a charter transfer possession of any Airframe or Wet Lease or other similar arrangement with respect any Engine to the Aircraft United States of America, or any other aircraft on which any Engine to a foreign government, when required by Applicable Law in the circumstances referred to in clause (f) of the definition of an Event of Loss (it being understood that nothing in this clause (vii) shall relieve the Lessee from its obligations under Section 10(a) or (b), as the case may be installed (which shall not be considered a be, if such transfer becomes an Event of possession hereunderLoss); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;and
(viii) So so long as no Event of Lease Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraphsublease any Airframe, enter into a lease with respect to the Aircraftany Engine, Airframe or any Engine Airframe and Engines or engines then installed on such Airframe (A) to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Approved Air Carrier, so long as it is a Certificated Air Carrier, or (B) with the prior written consent of the Lessor, the Owner Participant and the Finance Lessor, to any other Person, provided that in either case, the Lessor, the Finance Lessor and the Owner Participant receives at the time of such sublease an opinion of counsel to Lessee (such counsel to be satisfactory to the Lessor, the Finance Lessor and the Owner Participant) in form and substance satisfactory to the Lessor, the Finance Lessor and the Owner Participant) that such sublease does not and will not adversely affect such Person’s ownership interest or security interest in such Airframe and/or such Engine and otherwise complies with the requirements set forth in this Section 7(c), including the matters provided below. The following requirements shall be applicable to any sublease permitted under clause (viii) of the next preceding paragraph:
(i) prior to the commencement thereof notify the Lessor, the Owner Participant and the Finance Lessor of the identity of the lessee and the term of such lease and shall provide a copy of such lease agreement to the Lessor, the Finance Lessor or any Owner Participant, upon request therefrom;
(ii) such sublease shall not be for a term (including renewal options thereunder) that extends beyond the end of the Term for such Airframe and/or such Engine;
(iii) such sublease shall contain provisions that (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it sublease is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are expressly subject and subordinate to all the terms of this Trust Indenture Lease and the Finance Lease, including the rights of the Lessor and the Finance Lessor to avoid such sublease in the exercise of their rights to repossession hereunder and thereunder, (B) expressly prevent the sublessee from entering into any further sublease of any Airframe and/or any Engine the subject thereof, (C) require that such Airframe and/or such Engine be maintained and operated in accordance with the requirements of Section 7(a) and (b) hereof, (D) require the sublessee to comply with the terms of Section 11 hereof, (E) permit the Lessee, the Lessor and the Finance Lessor to require the sublessee to report to the Lessee, the Lessor and the Finance Lessor the location of the subleased Airframe and/or Engine from time to time, and (F) expressly prohibit any modification in the configuration of such Airframe and/or such Engine without the prior written consent of the Lessor, and, so long as this Lease is enforceable subject to the Lien of the Assignment Agreement, the Finance Lessor; and
(iv) all the Lessee’s right, title and interest in and to such sublease, including all rents and other payments of any kind made thereunder, and including the rights of the Lessee to make any election or to exercise any option or give any notice, consent, vote, or approval under or in respect thereof or to accept any surrender of the Aircraft or any part thereof as well as any right powers or remedies on the part of the Lessee thereunder arising out any default thereunder, shall be assigned to, (i) so long as this Lease is subject to the Lien of the Assignment Agreement, the Finance Lessor or (ii) otherwise, to the Lessor. The Lessee shall pay all costs and expenses incurred in connection with any sublease or proposed sublease pursuant to this Section 7(c) (whether or not such proposed sublease is actually entered into or consented to by the Lessor, the Finance Lessor or the Owner Participant) including, without limitation, (i) the fees and disbursements of counsel for the Owner Participant, the Lessor and the Finance Lessor and (ii) all costs and expenses incurred in connection with any filings necessary in connection with such sublease to continue the security interest in the Airframe and/or Engine and Lease in favor of the Finance Lessor. No pooling agreement, sublease or other relinquishment of possession of any Airframe or any Engine shall affect in any way the registration of any Aircraft, discharge or diminish any of the Lessee’s obligations to the Lessor hereunder or constitute a waiver of the Lessor’s rights or remedies hereunder; provided, however, that performance of any obligation of the Lessee hereunder by a permitted sublessee shall be deemed to be performance of such obligation by the Lessee hereunder, to the extent, but only to the extent, of such performance by such permitted sublessee. The rights of any transferee who receives possession by reason of a transfer permitted by this Section 7(c) (other than by a transfer of an Engine which is deemed an Event of Loss and in respect of which Section 10(b) shall have been complied with) shall be subject and subordinate to all the terms of this Lease and of the Finance Lease, and the Lessee shall remain primarily liable hereunder for the performance of all the terms of this Lease, and all the terms and conditions of this Lease and the other Operative Agreements shall remain in effect. No transfer of possession otherwise in compliance with this Section 7(c) shall (x) result in any registration or re-registration of any Aircraft, any Airframe or any Engine or result in any change in the maintenance, operation or use thereof or (y) permit any action not permitted to the Lessee hereunder. The Lessor agrees, for the benefit of the Lessee and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine) owned by the Lessee, any lessor of any engine (other than an Engine) leased to the Lessee and any conditional vendor of any engine (other than an Engine) purchased by the Lessee subject to a conditional sale agreement or any other security agreement, that no interest shall be created hereunder in any engine so owned, leased or purchased and that neither the Lessor nor its successors or assigns will acquire or claim, as against the Lessee or any such Permitted Air Carrier under applicable law;mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine as the result of such engine’s being installed on any Airframe; provided, however, that such agreement of the Lessor shall not be for the benefit of any lessor or secured party of any airframe (other than an Airframe) leased to the Lessee or purchased by the Lessee subject to a conditional sale or other security agreement or for the benefit of any mortgagee of or any other holder of a security interest in an airframe owned by the Lessee, unless such lessor, conditional vendor, other secured party or mortgagee has expressly agreed (which agreement may be contained in such lease, conditional sale or other security agreement or mortgage) that neither it nor its successors or assigns will acquire, as against the Lessor, any right, title or interest in an Engine as a result of such Engine’s being installed on such airframe.
Appears in 1 contract
Samples: Lease Agreement (Abx Air Inc)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry TRUST INDENTURE 14-1 and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States TRUST INDENTURE 10-0 Xxxxxxx Xxxxxxx xx xxx Xxxxxx Xxxxxx Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. TRUST INDENTURE 14-1 In the case of any lease permitted under this Section 4.02(b), the Owner will comply with the notice requirement of Section 6.1.5 of the Participation Agreement and will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Note Holder and Related Note Holder by acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and Related Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Possession. The Owner, without Without the prior written consent of Mortgageethe Loan Trustee, the Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except provided that the Owner mayCompany (or, except with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without such the prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements interchange, pooling, borrowing or pooling other similar agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's the Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part to (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine terms hereof or (y) to any Person for the purpose purposes of transport to a Person referred to in the preceding clause (x);
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or any Engine to the CRAF Program or transfer possession of the Airframe or such Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that the Company (or any Permitted Lessee Lessee) (A) shall promptly notify the Loan Trustee upon transferring possession of the Airframe or such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange, pooling, borrowing or other similar agreements or arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to the Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a lease, conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as either: (1) the case may be, shall have received Company has obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Loan Trustee (an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to the Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation adversely affects the Loan Trustee’s security interest in such Engine, the Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Company with Section 7.05(b);
(viviii) Transfer lease any Engine, the Airframe or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; provided that no Event of Default exists at the time such lease is entered into; and
(ix) lease any Engine, the Airframe or the Airframe and Engines to (A) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (B) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) and (C) any foreign air carrier consented to in writing by Loan Trustee with the U.S. Governmentconsent of a Majority in Interest of Noteholders; provided that (w) no Event of Default exists at the time such lease is entered into, (x) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains normal diplomatic relations with the country in which event Owner shall promptly notify Mortgagee such foreign air carrier is based at the time such lease is entered into and in writing the case of a lease to a foreign air carrier principally based in Taiwan, the United States maintains diplomatic relations with Taiwan at least as good as those on the Closing Date, (y) in the case of a lease to any foreign air carrier, the Company furnishes the Loan Trustee with a certificate from a Responsible Officer of the Company certifying that there exist no possessory rights in favor of such lessee under the laws of such lessee’s country which would, upon bankruptcy or insolvency of or other default by the Company, and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by the Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by the Loan Trustee of its remedies under Section 4.02, and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including the Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Sections 7.02(b) and (c) or (y) permit any action not permitted to be taken by the Company with respect to the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. The Loan Trustee, each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note, agrees, for the benefit of the Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to the Company (or any Permitted Lessee) or leased to or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Loan Trustee, the Noteholders and the Related Noteholders will not acquire or claim, as against the Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in (A) any engine or engines owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the conditional vendor or secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such lease or conditional sale or other security agreement. The Loan Trustee acknowledges that any “wet lease” or other similar arrangement under which the Company (or any Permitted Air Carrier under applicable law;Lessee) maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 1 contract
Samples: Indenture and Security Agreement (Spirit Airlines, Inc.)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, TRUST INDENTURE 10-1 borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military TRUST INDENTURE 10-1 Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. TRUST INDENTURE 10-1 In the case of any lease permitted under this Section 4.02(b), the Owner will comply with the notice requirement of Section 6.1.5 of the Participation Agreement and will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Note Holder and Related Note Holder by acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and Related Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Possession. The Owner, without the prior consent of Mortgagee, Lessee shall not lease sublease the Aircraft or otherwise in any manner deliver, relinquish or transfer or relinquish possession of the Aircraft, the Airframe or any Engine to any Person or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that , during the Owner mayTerm, without such the prior written consent of MortgageeLessor, provided, however, that so long as Lessee shall comply with the provisions of Section 11 hereof Lessee may, without the prior written consent of Lessor:
(ia) Subject or permit any Permitted Lessee to subject enter into an ACMI Lease in the ordinary course of Lessee's business;
(ib) deliver possession of the Airframe or an Engine to normal interchange agreements the manufacturer thereof for testing or other similar purposes or to any organization for service, repair, maintenance or overhaul work on the Airframe or Engines or for alterations or modifications in or additions to the Airframe or Engines, provided such organization is qualified and duly licensed to perform such work and otherwise to the extent required or permitted by the terms of this Lease;
(iic) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial European airline industry applicable to other similar aircraft and engines operated by Lessee, if any, and entered into by Owner or such Permitted Lessee, as the case may be, Lessee in the ordinary course of business; PROVIDEDits business with any Certificated Air Carrier, HOWEVERprovided that (i) no such agreement or arrangement contemplates or requires the transfer of title to any Engine, that and (ii) if OwnerLessor's title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered an Event of be a Total Loss as of the date of with respect to such divestiture, Engine and Owner Lessee shall comply with Section 4.04(e) 12.2 hereof in respect thereofof such Engine;
(iid) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or Lessee provided that following such Permitted Lessee, as the case may be, installation such Engine shall be free and clear of all Liensliens, except (xi) Permitted Liens and those that do not apply to the EnginesLiens, and (yii) those which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety), and (C) those created by the rights of third parties other Certificated Air Carriers under normal interchange or pooling agreements and or arrangements customary in the airline industry which do not contemplate, permit or require the transfer of the type that would be permitted under Section 4.02(b)(i)title to such airframe or engines installed thereon;
(ive) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if provided that (xi) such airframe is free and clear of all Liens, liens except (A) the rights of the parties to such the lease, conditional sale or any such secured financing arrangement, covering such airframe other security agreement and (B) Liens of the type permitted by clause (iiid) above above, and (yii) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) effectively provides that such Engine shall not become subject to the Lien of such lease, conditional sale or (iv) above is applicable; PROVIDEDother security agreement, HOWEVER, that any notwithstanding the installation thereof on such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereofairframe;
(vif) Transfer or permit Notwithstanding any Permitted Lessee to transfer transfers of possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer permitted pursuant to CRAFthis Section 8.11, in such notification Lessee shall identify by name, address at all times during the Term of this Lease remain fully liable and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force obligated to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially perform all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against Lease to the same extent as if such Permitted Air Carrier under applicable law;transfer had not occurred.
Appears in 1 contract
Samples: Lease Agreement (Airfund International Limited Partnership)
Possession. The Owner(i) Lease, Assignment and Transfer. LESSEE WILL NOT ASSIGN THIS LEASE OR ANY RIGHTS OR OBLIGATIONS HEREUNDER OR INTEREST HEREIN (EXCEPT AS PROVIDED IN SECTION 8(e) BELOW) OR SUBLEASE, WET LEASE OR OTHERWISE IN ANY MANNER TRANSFER, DELIVER OR RELINQUISH POSSESSION OR USE OF THE AIRCRAFT, AIRFRAME OR ANY ENGINE OR INSTALL ANY ENGINE OR PERMIT ANY ENGINE TO BE INSTALLED ON ANY AIRFRAME OTHER THAN THE AIRFRAME; provided, that, so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom and so long as the action to be taken shall not adversely affect Lessor's title to or other interest in, or the Lien of the Indenture on, the Aircraft, the Airframe or either of the Engines or this Lease or the insurance required to be maintained hereunder and Lessee is otherwise in full compliance with Section 12, and so long as all necessary approvals of the FAA and any other Governmental Entity having jurisdiction have been obtained, then Lessee, without the prior written consent of MortgageeLessor, may, only to the extent provided below and subject to the limitations of Sections 6(a)(ii) and 6(a)(iii) below:
(1) subject any Engine to a normal interchange, maintenance, servicing or pooling agreement or similar arrangement with a Permitted Sublessee, in each case customary in the airline industry of which Lessee is a part and entered into in the ordinary course of its business; provided that no transfer of the registration of any Engine shall not lease be effected in connection therewith; and provided, further, that (A) no such agreement or otherwise arrangement contemplates, results in or requires the transfer of title to any manner deliverEngine, transfer and (B) if Lessor's title to any Engine shall be divested under any such agreement or relinquish arrangement, such divestiture
(2) deliver possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof thereof, or in accordance with the Maintenance Program to any third-party maintenance provider an FAA certified repair station, for testing, service, storage, repair, maintenance maintenance, inspection or overhaul work on the such Aircraft, Airframe, any Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the such Aircraft, Airframe or any Engine to the extent required or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)Section 9 hereof;
(iii3) Install transfer possession of the Aircraft or permit the Airframe to the United States of America or any Permitted instrumentality or agency thereof pursuant to a sublease;
(i) subject the Airframe to the Civil Reserve Air Fleet Program and transfer possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program, so long as Lessee shall promptly notify Lessor upon transferring possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program and provide Lessor with the name and address of the Contracting Office Representative for the Military Airlift Command of the United States Air Force to whom notices must be given; or
(ii) subject the Airframe to (a) a service contract with the United States Government, a copy of which shall be provided to Lessor, providing for possession to be held by the United States Government for a period not extending beyond the end of the Term, or (b) a requisition for use by the United States Government not constituting an Event of Loss;
(5) install an Engine on an airframe (other than the Airframe) owned by Owner or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, Liens except (xA) Permitted Liens and those that do Liens which apply only to engines (other than the Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not apply to the Engines, airframe as an entirety) and (yB) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);participants under
(iv6) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if security agreement; provided that: (xA) such airframe is free and clear of all Liens, Liens except (A) the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe and (B) except Liens of the type permitted by clause clauses (iiiA) above and (yB) Owner of Section 6(a)(i)(5) and the Lien of any mortgage which provides that each Engine leased to Lessee hereby shall not become subject to the Lien thereof or Permitted to any rights of any party thereunder other than Lessee (with respect to Lessee's rights expressly granted hereunder), as notwithstanding the case may beinstallation of such Engine on any airframe subject to the Lien of such mortgage, unless and until Lessee shall become the owner of such Engine and Lessor shall have received from no further interest therein, all pursuant to the lessor, mortgagee, secured party or conditional seller, express terms of this Lease; and (B) there shall be in respect of such airframe, effect a written agreement of the lessor or secured party of such airframe (which may be a copy of contained in the lease, mortgage, security agreement, lease or conditional sale or other security agreement covering such airframe), ) substantially similar in effect to the agreement of Lessor in Section 6(b) below whereby such Person lessor or secured party effectively and expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien this Lease or is owned by Lessor, and a copy of this Trust Indenturesuch agreement shall be provided to Lessor upon written request;
(v7) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iiiSection 6(a)(i)(5) or (ivSection 6(a)(i)(6) above is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner Lessee shall comply with Section 4.04(e11(b) hereof in respect thereof;
(vi) Transfer , Lessor not intending hereby to waive any right or permit any Permitted Lessee interest it may have to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable lawLaw until compliance by Lessee with such Section 11(b);
Appears in 1 contract
Samples: Aircraft Lease Agreement (America West Airlines Inc)
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Collateral Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraftany Airframe, the Airframe or any Engine or Part, install any Engine, or permit any Engine to be installed, on installed in any airframe other than the AirframeAirframes or enter into any Wet Lease; except provided that so long as no Default of the Owner type referred to in Sections 8(a) or (f) of the Credit Agreement or Event of Default shall have occurred and be continuing at the time of such lease, delivery, transfer or relinquishment of possession or installation or such Wet Lease, so long as the action to be taken shall not deprive the Collateral Agent of the first priority Lien (subject to Permitted Liens) of this Mortgage on the Collateral and so long as the Company (or any Lessee) shall comply with the provisions of Sections 3.2(c) and 3.6 hereof, the Company may, without such the prior written consent of Mortgageethe Collateral Agent:
(i) Subject subject any Airframe or permit any Permitted Lessee to subject (i) the Engine or engines installed on an Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements pooling or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company (or such Permitted any Lessee, as the case may be, ) in the ordinary course of its business; PROVIDEDprovided that (A) no such agreement or arrangement contemplates or requires the transfer of title to any Airframe, HOWEVER, that (B) if Ownerthe Company's title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of with respect to such Engine and the date of such divestiture, and Owner Company shall (or shall cause Lessee to) comply with Section 4.04(e3.4(e) hereof in respect thereof, and (C) any interchange agreement to which the Airframes may be subject shall be with a U.S. Air Carrier or a Foreign Air Carrier;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or Engine or any Part (x) to the manufacturer thereof (or for delivery thereto) or to any third-party maintenance provider organization (or for delivery thereto) for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any such Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, such Airframe or any Engine to the extent required or (ypermitted by the terms of Section 3.4(d) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)hereof;
(iii) Install or permit install any Permitted Lessee to install an Engine on an airframe which is owned by Owner the Company (or such Permitted any Lessee, as the case may be, ) free and clear of all Liens, except except: (xA) Permitted Liens and those that do not which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (yother than Parts) installed on such airframe (but not to the airframe as an entirety), (B) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that which would be permitted under Section 4.02(b)(iclause (i) above provided that the Company's title to any such Engine and the first priority Lien of this Mortgage shall not be divested or impaired as a result thereof and (C) mortgage liens or other security interests, provided that (as regards this subclause (C)) such mortgage liens or other security interests effectively provide that such Engine shall not become subject to such mortgage or security interest, notwithstanding the installation thereof on such airframe;
(iv) Install or permit install any Permitted Lessee to install an Engine on an airframe which is leased to Owner the Company (or such Permitted any Lessee, ) or purchased by Owner the Company (or such Permitted Lessee any Lessee) subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if provided that (x) such airframe is free and clear of all Liens, except except: (A) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir assignees, covering such airframe and (B) Liens of the type permitted by clause (iii) above of this Section 3.2(a) and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), whereby such Person agrees effectively provides that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is shall not become subject to the Lien lien of this Trust Indenturesuch lease, conditional sale or other security agreement, notwithstanding the installation thereof on such airframe;
(v) Install or permit install any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such Permitted any Lessee), leased to Owner the Company (or such Permitted any Lessee, ) or purchased by Owner the Company (or such Permitted Lessee any Lessee) which is subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or nor clause (iv) above of this Section 3.2(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner that the Company shall (or shall cause any Lessee to) comply with Section 4.04(e3.4(e) hereof in respect thereof, the Collateral Agent not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Company with such Section 3.4(e);
(vi) Transfer to the extent permitted by Section 3.4(c) hereof, subject any appliances, Parts or other equipment owned by the Company and removed from any Airframe or Engine to any pooling arrangement referred to in such Section;
(vii) subject (or permit any Permitted Lessee to transfer possession of the Aircraft, subject) any Airframe or any Engine to the U.S. GovernmentCivil Reserve Air Fleet Program and transfer (or permit any Lessee to transfer) possession of any Airframe or Engine to the United States of America or any instrumentality or agency thereof pursuant to the Civil Reserve Air Fleet Program, in which event Owner so long as the Company (or any Lessee) shall (A) promptly notify Mortgagee the Collateral Agent upon subjecting such Airframe or Engine to the Civil Reserve Air Fleet Program in writing any contract year and provide the Collateral Agent with the name and address of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Air Mobility Command of the United States Air Force to whom notices notice must be given pursuant to Section 4.2 hereof, and to whom requests (B) promptly notify the Collateral Agent upon transferring possession of the Airframe or claims must be made any Engine to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft United States of America or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any agency or instrumentality thereof pursuant to such charter or Wet Lease or other similar arrangementprogram;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease Wet Lease for any Airframe or engines then installed thereon with respect any third party, provided that if the Company (or any Lessee) shall enter into any Wet Lease for a period of more than one year (including renewal options) the Company shall provide to the AircraftCollateral Agent written notice of such Wet Lease (such notice to be given prior to entering into such Wet Lease, Airframe or if practicable, but in any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the event promptly after entering into such Wet Lease);
(ix) transfer possession of any liquidator, trustee, receiver Airframe or similar person; PROVIDED THAT, in Engine to the case only United States of a lease America or any instrumentality or agency thereof pursuant to a Permitted Foreign contract, a copy of which shall be provided to the Collateral Agent, or
(x) enter, any time, into any lease of any Airframe or Engine with (A) a U.S. Air Carrier, (B) any Person approved in writing by the Collateral Agent (with the approval of the Required Lenders), (C) any Permitted Lessee, or (D) any airline alliance partner of the Company that otherwise meets the requirement of (A), (B) or (C) above or has been previously approved in writing by the Collateral Agent, in any such case, if (1) the lessee under such lease is not subject to a proceeding or final order under applicable bankruptcy, insolvency or reorganization laws on the date such lease is entered into, (2) in the event that the lessee under such lease is a Foreign Air Carrier (other than a Foreign Air Carrier principally based in Taiwan), the United States maintains diplomatic relations with the country of domicile of in which such Permitted Foreign Air Carrier is principally based at the time such lease is entered into (or, in the case of a lease to a lessee principally based in Taiwan, maintains diplomatic relations at least as good as those in effect on the Closing Effective Date) and (B3) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of event that the lessee under such Permitted lease is a Foreign Air Carrier, the Collateral Agent shall receive at the time such lease is entered into an opinion of counsel (in form and substance reasonably satisfactory to the Collateral Agent) to the Company to the effect that (vI) the terms of the proposed lease will be legal, valid, binding and (subject to customary exceptions in foreign opinions generally) enforceable against the proposed lessee in the country in which the proposed lessee is principally based, (II) there exist no possessory rights in favor of the lessee under such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionlessee's country of domicile that would, upon bankruptcy or insolvency of or other default by the Company and assuming at such time such lessee is not insolvent or bankrupt, prevent the return or repossession of the Aircraft in accordance with the terms of this Mortgage, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (yIII) the Laws laws of such jurisdiction lessee's country of domicile require fair compensation by the government of such jurisdiction, jurisdiction payable in a currency freely convertible into Dollars, Dollars for the loss of title to use of the Aircraft, Airframe or Engines Aircraft in the event of the requisition by such government of such title use, and (unless Owner shall provide insurance in IV) the amounts required with respect laws of such lessee's country of domicile would give recognition to hull insurance under this Trust Indenture covering the requisition of Company's title to the Aircraft, to the registry of the Aircraft in the name of the Company (or the proposed lessee, as "lessee," as appropriate), and to the Lien of this Mortgage. The rights of any Lessee or other transferee who receives possession by reason of a transfer permitted by this Section 3.2(a) (other than the transfer of an Engine which is deemed an Event of Loss) shall be effectively subject and subordinate to, and any lease permitted by this Section 3.2(a) shall be expressly subject and subordinate to, all the terms of this Mortgage and to the Lien of this Mortgage, including, without limitation, the covenants contained in this Section 3.2 and the Collateral Agent's rights to foreclosure and possession pursuant to Section 4.2 hereof and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance of all of the terms of this Mortgage to the same extent as if such lease or transfer had not occurred, and, except as otherwise provided herein, the terms of any such lease shall not permit any Lessee to take any action not permitted to be taken by the Company in this Mortgage with respect to the Aircraft. No pooling agreement, lease or other relinquishment of possession of any Airframe or Engines Engine, or Wet Lease shall in any way discharge or diminish any of the Company's obligations to the Collateral Agent hereunder or constitute a waiver of the Collateral Agent's rights or remedies hereunder. Any lease permitted under this Section 3.2(a) shall expressly prohibit any further sublease by the government Lessee. The Collateral Agent agrees, for the benefit of the Company (and any Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine) owned by the Company (or any Lessee), any lessor of any engine (other than an Engine) leased to the Company (or any Lessee) and any conditional vendor of any engine (other than an Engine) purchased by the Company (or any Lessee) subject to a conditional sale agreement or any other security agreement, that no interest shall be created hereunder in any engine so owned, leased or purchased and that neither the Collateral Agent nor its successors or assigns will acquire or claim, as against the Company (or any Lessee) or any such mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine as the result of such jurisdiction so long as engine being installed on the AircraftAirframes; provided, Airframe however, that such agreement of the Collateral Agent shall not be for the benefit of any lessor or Engines are secured party of any airframe (other than the Airframes) leased to the Company (or any Lessee) or purchased by the Company (or any Lessee) subject to a conditional sale or other security agreement or for the benefit of any mortgagee of or any other holder of a security interest in an airframe owned by the Company (or any Lessee), unless such lessor, conditional vendor, other secured party or mortgagee has expressly agreed (which agreement may be contained in such lease, conditional sale or other security agreement or mortgage) that neither it nor its successors or assigns will acquire, as against the Collateral Agent, any right, title or interest in an Engine as a result of such Engine being installed on such airframe. The Company shall provide to the Collateral Agent (i) written notice of any lease hereunder (such notice to be given not later than five days prior to entering into such lease) and (zii) the agreement a copy of such Permitted Air Carrier that its rights under the each lease are subject and subordinate to all the terms which has a term of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;more than three months.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Northwest Airlines Corp)
Possession. The OwnerBorrower will not, without the prior written consent of MortgageeLender, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, installed on any airframe other than the Airframe; except , provided that so long as no Specified Default or Event of Default shall have occurred and be continuing at the Owner time of such lease, delivery, transfer or relinquishment of possession or installation, Borrower may, without such the prior written consent of MortgageeLender or Security Trustee:
(i1) Subject subject the Engines or permit any Permitted Lessee to subject (i) engines then installed on the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements pooling or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Borrower in the ordinary course of business; PROVIDEDits business with any Certified Air Carrier, HOWEVEREngine Manufacturer, that if Owner's title Manufacturer or an authorized service center of either Manufacturer or Engine Manufacturer, in each case, not then insolvent or subject to any such Engine is divested under any such agreement bankruptcy, reorganization or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereofsimilar proceeding;
(ii2) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider other qualified institution for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Airframe or Engine or any Part, or, to the extent required Part of any thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, such Airframe or any Engine to the extent required or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)this Mortgage;
(iii3) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, Borrower which airframe is free and clear of all Liens, except except: (xA) Permitted Liens and those that apply only to engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) that do not apply contemplate, permit or require the transfer of title to the Enginessuch airframe or engine installed thereon, and (yB) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i4.01(b)(iv)(1);
(iv4) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, Borrower or purchased by Owner or such Permitted Lessee Borrower subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if provided that (xA) such airframe is free and clear of all Liens, except except: (A1) the respective rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir assignees, covering such airframe and (B2) Liens of the type permitted by clause (iiiSection 4.01(b)(iv)(3) above and (yB) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) effectively provides that such Engine shall not become subject to the lien of such lease, conditional sale or (iv) above is applicableother security agreement, notwithstanding the installation thereof on such airframe; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;and
(vi5) Transfer or permit any Permitted Lessee for a period not to transfer possession extend beyond the end of the AircraftTerm, subject the Airframe or any Engine to to: (1) the U.S. GovernmentCivil Reserve Air Fleet Program, in (2) contracts with the U.S. government or any agency thereof the obligations of which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in are supported by the case of any transfer pursuant to CRAF, in such notification shall identify by name, address full faith and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command credit of the United States Air Force to whom notices must be given and to whom requests U.S. government or claims must be made to (3) any wet lease or similar arrangement under which Borrower maintains operational control of the extent applicable under CRAF;Aircraft.
(vii6) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;[intentionally omitted]
Appears in 1 contract
Samples: Aircraft Mortgage and Security Agreement (Skywest Inc)
Possession. The Owner(i) Lease, Assignment and Transfer. LESSEE WILL NOT ASSIGN THIS LEASE OR ANY RIGHTS OR OBLIGATIONS HEREUNDER OR INTEREST HEREIN (EXCEPT AS PROVIDED IN SECTION 8(e) BELOW) OR SUBLEASE, WET LEASE OR OTHERWISE IN ANY MANNER TRANSFER, DELIVER OR RELINQUISH POSSESSION OR USE OF THE AIRCRAFT, AIRFRAME OR ANY ENGINE OR INSTALL ANY ENGINE OR PERMIT ANY ENGINE TO BE INSTALLED ON ANY AIRFRAME OTHER THAN THE AIRFRAME; provided, that, so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom and so long as the action to be taken shall not adversely affect Lessor's title to or other interest in, or the Lien of the Indenture on, the Aircraft, the Airframe or either of the Engines or this Lease or the insurance required to be maintained hereunder and Lessee is otherwise in full compliance with Section 12, and so long as all necessary approvals of the FAA and any other Governmental Entity having jurisdiction have been obtained, then Lessee, without the prior written consent of MortgageeLessor, may, only to the extent provided below and subject to the limitations of Sections 6(a)(ii) and 6(a)(iii) below:
(1) subject any Engine to a normal interchange, maintenance, servicing or pooling agreement or similar arrangement with a Permitted Sublessee, in each case customary in the airline industry of which Lessee is a part and entered into in the ordinary course of its business; provided that no transfer of the registration of any Engine shall be effected in connection therewith; and provided, further, that (A) no such agreement or arrangement contemplates, results in or requires the transfer of title to any Engine, and (B) if Lessor's title to any Engine shall be divested under any such agreement or arrangement, such divestiture shall be deemed to be an Event of Loss with respect to such Engine and not lease or otherwise an Event of Default and Lessee shall comply with Section 11(b) hereof in any manner deliver, transfer or relinquish respect thereof;
(2) deliver possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof thereof, or in accordance with the Maintenance Program to any third-party maintenance provider an FAA certified repair station, for testing, service, storage, repair, maintenance maintenance, inspection or overhaul work on the such Aircraft, Airframe, any Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the such Aircraft, Airframe or any Engine to the extent required or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)Section 9 hereof;
(iii3) Install transfer possession of the Aircraft or permit the Airframe to the United States of America or any Permitted instrumentality or agency thereof pursuant to a sublease;
(i) subject the Airframe to the Civil Reserve Air Fleet Program and transfer possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program, so long as Lessee shall promptly notify Lessor upon transferring possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program and provide Lessor with the name and address of the Contracting Office Representative for the Military Airlift Command of the United States Air Force to whom notices must be given; or
(ii) subject the Airframe to (a) a service contract with the United States Government, a copy of which shall be provided to Lessor, providing for possession to be held by the United States Government for a period not extending beyond the end of the Term, or (b) a requisition for use by the United States Government not constituting an Event of Loss;
(5) install an Engine on an airframe (other than the Airframe) owned by Owner or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, Liens except (xA) Permitted Liens and those that do Liens which apply only to engines (other than the Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not apply to the Engines, airframe as an entirety) and (yB) the rights of third parties participants under normal interchange agreements which are customary in the airline industry and do not contemplate, permit, result in or pooling agreements and arrangements require the transfer of title to the type that would be permitted under Section 4.02(b)(i)airframe or engines installed thereon;
(iv6) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if security agreement; provided that: (xA) such airframe is free and clear of all Liens, Liens except (A) the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe and (B) except Liens of the type permitted by clause clauses (iiiA) above and (yB) Owner of Section 6(a)(i)(5) and the Lien of any mortgage which provides that each Engine leased to Lessee hereby shall not become subject to the lien thereof or Permitted to any rights of any party thereunder other than Lessee (with respect to Lessee's rights expressly granted hereunder), as notwithstanding the case may beinstallation of such Engine on any airframe subject to the Lien of such mortgage, unless and until Lessee shall become the owner of such Engine and Lessor shall have received from no further interest therein, all pursuant to the lessor, mortgagee, secured party or conditional seller, express terms of this Lease; and (B) there shall be in respect of such airframe, effect a written agreement of the lessor or secured party of such airframe (which may be a copy of contained in the lease, mortgage, security agreement, lease or conditional sale or other security agreement covering such airframe), ) substantially similar in effect to the agreement of Lessor in Section 6(b) below whereby such Person lessor or secured party effectively and expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien this Lease or is owned by Lessor, and a copy of this Trust Indenturesuch agreement shall be provided to Lessor upon written request;
(v7) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iiiSection 6(a)(i)(5) or (ivSection 6(a)(i)(6) above is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner Lessee shall comply with Section 4.04(e11(b) hereof in respect thereof, Lessor not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Lessee with such Section 11(b);
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter 8) enter into a charter or Wet Lease or other similar arrangement with respect to for the Aircraft or the Airframe and engines installed thereon in the ordinary course of Lessee's business for a period not extending beyond the Term; provided that if Lessee (or any other aircraft on which Permitted Sublessee) shall enter into any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;for
(viii9) So long as no Event of Default shall have occurred and be continuing, and subject to sublease the provisions of Aircraft or the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect Sublessee on the Closing Dateterms and conditions set forth in Section 6(a)(iii) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;below.
Appears in 1 contract
Samples: Aircraft Lease Agreement (America West Airlines Inc)
Possession. The Owner, without Without the prior written consent of Mortgageethe Administrative Agent (and other than with respect to any such Airframe, Engine or Spare Engine that has been released from the Liens granted herein pursuant to Section 6.06(c) of the Credit Agreement) no Grantor shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the any Airframe or any Engine or Spare Engine or install any Engine or Spare Engine, or permit any Engine or Spare Engine to be installed, on any airframe other than the an Airframe; provided that each Grantor (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of Mortgageethe Administrative Agent:
(i) Subject or permit subject any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine or Spare Engine, to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner a Grantor (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDEDprovided that (A) no such agreement or arrangement contemplates or requires the transfer of title to such Airframe, HOWEVER, that and (B) if Ownersuch Grantor's title to any such Engine or Spare Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine or Spare Engine, and Owner Grantors shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e3.01(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or any Engine or any Part (x) to the manufacturer thereof or Spare Engine to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on the Aircraftother similar purposes or for alterations, Airframe, any modifications or additions to such Airframe or such Engine or any Part, or, Spare Engine to the extent required or permitted by Section 4.04, for alterations the terms hereof;
(iii) transfer or modifications in or additions to permit the Aircraft, transfer of possession of any Airframe or any Engine or (y) Spare Engine to any Person for the purpose of transport United States government pursuant to a Person referred to in the preceding clause (x)lease, contract or other instrument;
(iiiiv) Install subject (or permit any Permitted Lessee to install an subject) any Airframe or any Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply any Spare Engine to the Engines, and CRAF Program or transfer (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an transfer) possession of any Airframe or any Engine on an airframe leased or any Spare Engine to Owner the United States Government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided, that such Grantor (or any Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) shall promptly notify the rights Administrative Agent upon transferring possession of the parties to such lease, any Airframe or any such secured financing arrangement, covering such airframe Engine or any Spare Engine pursuant to this clause (iv) and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any a transfer of possession pursuant to CRAFthe CRAF Program, in such notification shall identify by name, notify the Administrative Agent of the name and address and telephone numbers of the responsible Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAFthe CRAF program;
(v) install an Engine or Spare Engine on an airframe owned by such Grantor (or any Permitted Lessee) free and clear of all Liens, except (A) Permitted Collateral Liens and Liens that apply only to the engines (other than Engines or Spare Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine or Spare Engine on an airframe leased to a Grantor (or any Permitted Lessee) or purchased or owned by such Grantor (or any Permitted Lessee) subject to a conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such airframe, or their successors and assigns, and (2) Liens of the type permitted by clause (v) of this Section 2.01(a); and (B) either: (1) such Grantor has obtained from the lessor or secured party of such airframe a written agreement (which may be the lease, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Administrative Agent (an agreement from such lessor or secured party substantially in the form of the penultimate paragraph of this Section 2.01(a) being deemed to be satisfactory to the Administrative Agent), whereby such lessor or secured party expressly agrees that neither it nor its successors or assigns will acquire or claim any right, title or interest in any Engine or Spare Engine by reason of such Engine or Spare Engine being installed on such airframe at any time while such Engine or Spare Engine is subject to the Lien of this Mortgage, or (2) such lease, conditional sale or other security agreement provides that such Engine or Spare Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine or Spare Engine is subject to the Lien of this Mortgage, notwithstanding its installation on such airframe;
(vii) Enter into install an Engine or Spare Engine on an airframe owned by such Grantor (or any Permitted Lessee), leased to such Grantor (or any Permitted Lessee) or purchased by such Grantor (or any Permitted Lessee) subject to a charter or Wet Lease conditional sale or other similar arrangement security agreement under circumstances where neither clause (v) nor clause (vi) of this Section 2.01(a) is applicable; provided that such installation shall be deemed an Event of Loss with respect to such Engine or Spare Engine, and Grantors shall comply with Section 3.01(b) in respect thereof, if such installation adversely affects the Aircraft Administrative Agent's security interest in such Engine or Spare Engine, the Administrative Agent not intending hereby to waive any other aircraft on which any right or interest it may have to or in such Engine may be installed (which shall not be considered a transfer of possession hereunderor Spare Engine under applicable law until compliance by such Grantor with Section 3.01(b); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as lease any Engine or Spare Engine or any Airframe and its related Engines to any Certificated Air Carrier; provided that at the commencement of such lease no Event of Default shall have or Specified Default has occurred and be continuingis continuing and such Certificated Air Carrier, and if other than an Affiliate in the same proceeding, is not at that time subject to the provisions of the immediately following paragrapha proceeding under applicable bankruptcy, enter into a insolvency or reorganization laws; and
(ix) lease with respect to the Aircraft, Airframe any Engine or Spare Engine or any Engine to Airframe and its related Engines to:
(1) any Permitted Foreign Air Carrier that is not then at the inception of the lease based in and a domiciliary of a country listed in Exhibit D hereto, or
(2) a manufacturer of airframes or engines (either directly or through an Affiliate, so long as the obligations of such Affiliate are subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all the unconditional guarantee of its property related manufacturer) that is at the inception of the lease based in the possession and a domiciliary of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the or any country of domicile of such Permitted listed on Exhibit D hereto, or
(3) any other Foreign Air Carrier consented to in writing by the Administrative Agent; provided that at the commencement of such lease no Event of Default or Specified Default has occurred and is continuing, and provided, further, that: (orv) the aggregate of the Appraised Values of all Airframes, Engines and Spare Engines (including the Appraised Value(s) attributable to any quick engine change kits installed on any such Engine or Spare Engine) leased pursuant to Section 2.01(a)(viii) and this Section 2.01(a)(ix), other than Engines or Spare Engines so leased under leases having a term (including any renewal term) of six months or less, when aggregated with the Appraised Value of all Airframes reregistered outside the United States pursuant to Section 2.01(e), shall be subject to the Reregistration and Lease Limit (except to the extent such Reregistration and Lease Limit is expressly waived in writing by the Administrative Agent), (w) in the case of Taiwana lease of an Airframe, diplomatic relations Engine or Spare Engine to a Foreign Air Carrier under clause (1) above, the Administrative Agent receives the following documents at least as good as those in effect on two Business Days prior to the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms time of such lease are (provided that such documents can be furnished less than two Business Days prior to such time if the legal, valid and binding obligations of the parties thereto enforceable under the laws Administrative Agent received drafts of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject documents no later than two Business Days prior to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;time):
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Security Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the such Aircraft, the such Airframe or any such Engine or install any such Engine, or permit any such Engine to be installed, on any airframe other than the another Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Security Agent:
(i) Subject or permit any Permitted Lessee to subject (i) the such Airframe to normal interchange agreements or (ii) subject any such Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to such Airframe and (B) if Owner's the Company’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine such Airframe or any Part (x) to the manufacturer thereof or such Engine to any third-party maintenance provider Person for testing, service, repair, maintenance or reconditioning, restoration, storage, maintenance, overhaul work on the Aircraftor other similar purposes or for alterations, Airframe, any Engine modifications or additions to such Airframe or any Part, or, such Engine to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of such Airframe or any Permitted Lessee such Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject such Airframe or any such Engine to the CRAF Program or transfer possession of such Airframe or any such Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided, that the Company (A) shall promptly notify the Security Agent upon transferring possession of such Airframe or any such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Security Agent of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an any such Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to such airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install any such Engine on an airframe leased, purchased or owned by the Company (or any Permitted Lessee) subject to a lease, conditional sale and/or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or any conditional sale or security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Security Agent (it being understood that an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Security Agent), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, in any such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureAircraft Security Agreement or (2) such lease, conditional sale or other security agreement provides that any such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Aircraft Security Agreement, notwithstanding the installation thereof on such airframe;
(vvii) Install or permit install any Permitted Lessee to install an such Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of , if such installation shall adversely affect the Aircraft, Airframe or any Engine to the U.S. Government, Security Agent’s security interest in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession andEngine, in the case of Security Agent not intending hereby to waive any transfer pursuant right or interest it may have to CRAF, or in such notification shall identify Engine under applicable law until compliance by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement Company with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunderSection 7.05(b); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So lease any such Engine or such Airframe and any such Engine to any United States air carrier as to which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. §§41101-41112) or successor provision that gives like authority, or to any manufacturer of airframes or engines (or an Affiliate thereof acting under an unconditional guarantee of such manufacturer), so long as such manufacturer and, if applicable, such Affiliate is domiciled in the United States); provided that no Event of Default shall have occurred exist at the time any such lease is entered into; and
(ix) lease any such Engine or such Airframe and be continuingany such Engine to (A) any foreign air carrier other than those set forth in clause (B), and subject to (B) any foreign air carrier that is at the provisions inception of the immediately following paragraphlease based in and a domiciliary of a country listed in Exhibit B hereto, enter into (C) any foreign manufacturer of airframes or engines (or a foreign Affiliate of a United States or foreign manufacturer of airframes or engines acting under an unconditional guarantee of such manufacturer), so long as such foreign manufacturer or (if applicable) foreign Affiliate is domiciled in a country indicated with an asterisk on Exhibit B hereto, or (D) any foreign air carrier consented to in writing by the Security Agent with the consent of the Trustee; provided that (w) in the case of a lease to, or guarantee by, any entity pursuant to this Section 7.02(a)(ix), (1) other than a foreign carrier principally based in Taiwan, the United States maintains diplomatic relations with respect to the Aircraftcountry in which such entity is based and domiciled at the time such lease is entered into, Airframe or any Engine to any Permitted Air Carrier that (2) no Event of Default exists at the time such lease is entered into and (3) such entity is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, (x) in the case only of a lease to a Permitted Foreign Air Carrier, foreign air carrier under clause (A) above, the United States maintains diplomatic relations with Security Agent receives at the country of domicile time of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable lease an opinion of counsel, counsel to the Company (such counsel to be reasonably satisfactory to Mortgagee, the Security Agent) to the effect that there exist no possessory rights in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations favor of the parties thereto enforceable lessee under the laws of such jurisdictionlessee’s country which would, (w) it upon bankruptcy or insolvency of or other default by the Company and assuming at such time such lessee is not necessary for Mortgagee to register insolvent or qualify to do business in bankrupt, prevent the taking of possession of any such jurisdiction, if not already so registered Engine or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, such Airframe and Engines will be recognized any such Engine by the Security Agent in such jurisdictionaccordance with and when permitted by the terms of Section 4.02 upon the exercise by the Security Agent of its remedies under Section 4.02, and (y) in the Laws case of a lease to any foreign manufacturer or foreign Affiliate under clause (C) above, the re-registration conditions set forth in Section 7.02(e) shall be satisfied notwithstanding anything to the contrary in such clause (C); provided that the rights of any lessee or other transferee who receives possession of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, such Airframe or Engines in any such Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by any such government Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture Aircraft Security Agreement, including the Security Agent’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Aircraft Security Agreement to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of such Aircraft, Airframe or Engine, and no lease or transfer or possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of such Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and Section 7.02(c) or (y) permit any action not permitted to be taken by the Company with respect to such Aircraft hereunder. The Company shall promptly notify the Security Agent of the existence of any such lease with a term in excess of one year. Each of the Security Agent and the Trustee agrees, and each Noteholder by acceptance of a Note is enforceable deemed to have agreed, for the benefit of the Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of such Airframe or engine leased to the Company (or any Permitted Lessee) or leased to or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Security Agent, the Trustee and the Noteholders will not acquire or claim, as against the Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in (A) any engine or engines owned by the Company (or any Permitted Air Carrier Lessee) or the lessor under applicable law;such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on such Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of any such Engine being installed on such airframe at any time while such airframe is subject to such lease or conditional sale or other security agreement. Each of the Security Agent and the Trustee acknowledges that any “wet lease” or other similar arrangement under which the Company maintains operational control of an Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 1 contract
Samples: Aircraft Security Agreement (American Airlines Inc)
Possession. The Owner(i) Lease, Assignment and Transfer. LESSEE WILL NOT ASSIGN THIS LEASE OR ANY RIGHTS OR OBLIGATIONS HEREUNDER OR INTEREST HEREIN (EXCEPT AS PROVIDED IN SECTION 8(e) BELOW) OR SUBLEASE, WET LEASE OR OTHERWISE IN ANY MANNER TRANSFER, DELIVER OR RELINQUISH POSSESSION OR USE OF THE AIRCRAFT, AIRFRAME OR ANY ENGINE OR INSTALL ANY ENGINE OR PERMIT ANY ENGINE TO BE INSTALLED ON ANY AIRFRAME OTHER THAN THE AIRFRAME; provided, that, so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom and so long as the action to be taken shall not adversely affect Lessor's title to or other interest in, or the Lien of the Indenture on, the Aircraft, the Airframe or either of the Engines or this Lease or the insurance required to be maintained hereunder and Lessee is otherwise in full compliance with Section 12, and so long as all necessary approvals of the FAA and any other Governmental Entity having jurisdiction have been obtained, then Lessee, without the prior written consent of MortgageeLessor, may, only to the extent provided below and subject to the limitations of Sections 6(a)(ii) and 6(a)(iii) below:
(1) subject any Engine to a normal interchange, maintenance, servicing or pooling agreement or similar arrangement with a Permitted Sublessee, in each case customary in the airline industry of which Lessee is a part and entered into in the ordinary course of its business; provided that no transfer of the registration of any Engine shall be effected in connection therewith; and provided, further, that (A) no such agreement or arrangement contemplates, results in or requires the transfer of title to any Engine, and (B) if Lessor's title to any Engine shall be divested under any such agreement or arrangement, such divestiture shall be deemed to be an Event of Loss with respect to such Engine and not lease or otherwise an Event of Default and Lessee shall comply with Section 11(b) hereof in any manner deliver, transfer or relinquish respect thereof;
(2) deliver possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof thereof, or in accordance with the Maintenance Program to any third-party maintenance provider an FAA certified repair station, for testing, service, storage, repair, maintenance maintenance, inspection or overhaul work on the such Aircraft, Airframe, any Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the such Aircraft, Airframe or any Engine to the extent required or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)Section 9 hereof;
(iii3) Install transfer possession of the Aircraft or permit the Airframe to the United States of America or any Permitted instrumentality or agency thereof pursuant to a sublease;
(i) subject the Airframe to the Civil Reserve Air Fleet Program and transfer possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program, so long as Lessee shall promptly notify Lessor upon transferring possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program and provide Lessor with the name and address of the Contracting Office Representative for the Military Airlift Command of the United States Air Force to whom notices must be given; or
(ii) subject the Airframe to (a) a service contract with the United States Government, a copy of which shall be provided to Lessor, providing for -29- 35 possession to be held by the United States Government for a period not extending beyond the end of the Term, or (b) a requisition for use by the United States Government not constituting an Event of Loss;
(5) install an Engine on an airframe (other than the Airframe) owned by Owner or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, Liens except (xA) Permitted Liens and those that do Liens which apply only to engines (other than the Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not apply to the Engines, airframe as an entirety) and (yB) the rights of third parties participants under normal interchange agreements which are customary in the airline industry and do not contemplate, permit, result in or pooling agreements and arrangements require the transfer of title to the type that would be permitted under Section 4.02(b)(i)airframe or engines installed thereon;
(iv6) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if security agreement; provided that: (xA) such airframe is free and clear of all Liens, Liens except (A) the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe and (B) except Liens of the type permitted by clause clauses (iiiA) above and (yB) Owner of Section 6(a)(i)(5) and the Lien of any mortgage which provides that each Engine leased to Lessee hereby shall not become subject to the Lien thereof or Permitted to any rights of any party thereunder other than Lessee (with respect to Lessee's rights expressly granted hereunder), as notwithstanding the case may beinstallation of such Engine on any airframe subject to the Lien of such mortgage, unless and until Lessee shall become the owner of such Engine and Lessor shall have received from no further interest therein, all pursuant to the lessor, mortgagee, secured party or conditional seller, express terms of this Lease; and (B) there shall be in respect of such airframe, effect a written agreement of the lessor or secured party of such airframe (which may be a copy of contained in the lease, mortgage, security agreement, lease or conditional sale or other security agreement covering such airframe), ) substantially similar in effect to the agreement of Lessor in Section 6(b) below whereby such Person lessor or secured party effectively and expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien this Lease or is owned by Lessor, and a copy of this Trust Indenturesuch agreement shall be provided to Lessor upon written request;
(v7) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iiiSection 6(a)(i)(5) or (ivSection 6(a)(i)(6) above is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner Lessee shall comply with Section 4.04(e11(b) hereof in respect thereof, Lessor not intending hereby to waive any right or interest it may have to or in such Engine under applicable Law until compliance by Lessee with such Section 11(b);
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter 8) enter into a charter or Wet Lease or other similar arrangement with respect to for the Aircraft or the Airframe and engines installed thereon in the ordinary course of Lessee's business for a period not extending beyond the Term; provided that if Lessee shall enter into any other aircraft on which any Engine may Wet Lease for a period of more than six months (including renewal options) Lessee shall provide to Lessor written notice of such Wet Lease (such notice to be installed given at least ten (which shall not be considered a transfer of possession hereunder10) Business Days prior to entering into such Wet Lease); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;or
(viii9) So long as no Event of Default shall have occurred and be continuing, and subject to sublease the provisions of Aircraft or the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect Sublessee on the Closing Dateterms and conditions set forth in Section 6(a)(iii) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;below.
Appears in 1 contract
Samples: Aircraft Lease Agreement (America West Airlines Inc)
Possession. The Owner, without the prior consent of Mortgagee, Lessee shall not lease sublease, or otherwise in any manner deliver, relinquish or transfer or relinquish possession of the Aircraft, the Airframe or any Engine leased hereunder to any Person or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; , during the Term, without the prior consent of the Lessor, which consent shall not be unreasonably withheld, except that the Owner may, Lessee may without such the prior written consent of Mortgageethe Lessor:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter enter into a charter or Wet Lease wet lease or other similar arrangement with respect to under which the Aircraft or Lessee has operational control of the Airframe and any other aircraft on which any Engine may be Engines installed thereon in the course of the Lessee's business (which shall not be considered a transfer of possession hereunder); PROVIDED THAT , provided that the OwnerLessee's obligations hereunder under this Lease shall continue in full force and effect notwithstanding any such charter or Wet Lease wet lease or other similar arrangement;
(viiiii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions deliver possession of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine or any Part to the manufacturer thereof or to any Permitted Air Carrier that is not then organization for testing, service, repair, maintenance, overhaul work or other similar purposes or for alterations or modifications or additions required or permitted by the terms of this Lease;
(iii) subject the Airframe and any Engines installed thereon to interchange agreements or any bankruptcy, insolvency, liquidation, reorganization, dissolution Engine to interchange or pooling agreements or arrangements which are applicable to other similar proceeding property owned by or leased to the Lessee and shall not have substantially all are entered into by the Lessee in the course of its property in the possession of airline business with any liquidatorair carrier, trusteeprovided, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, that (A) no such agreement or arrangement shall under any circumstances result in, contemplate or require the United States maintains diplomatic relations with transfer of title to the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) Aircraft or Airframe and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in if the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) MortgageeLessor's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraftany Engine shall be divested under any such agreement or arrangement, Airframe or Engines in the event such divestiture shall be deemed to be an Event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required Loss with respect to hull insurance under this Trust Indenture covering such Engine and the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such leaseLessee shall comply with Section 7(e) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable lawhereof in respect thereof;
Appears in 1 contract
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
; OWNED AIRCRAFT INDENTURE 22 501 (iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;
Appears in 1 contract
Samples: Note Purchase Agreement (Continental Airlines Inc /De/)
Possession. The Owner, without Without the prior written consent of Mortgageethe Administrative Agent (and other than with respect to any such Airframe, Engine or Spare Engine that has been released from the Liens granted herein pursuant to Section 6.06(c) of the Credit Agreement or this Mortgage) no Grantor shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the any Airframe or any Engine or Spare Engine or install any Engine or Spare Engine, or permit any Engine or Spare Engine to be installed, on any airframe other than the an Airframe; provided that each Grantor (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of Mortgageethe Administrative Agent:
(i) Subject or permit subject any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine or Spare Engine, to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner a Grantor (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDEDprovided that (A) no such agreement or arrangement contemplates or requires the transfer of title to such Airframe, HOWEVER, that and (B) if Owner's such Grantor’s title to any such Engine or Spare Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine or Spare Engine, and Owner Grantors shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e3.01(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or any Engine or any Part (x) to the manufacturer thereof or Spare Engine to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on the Aircraftother similar purposes or for alterations, Airframe, any modifications or additions to such Airframe or such Engine or any Part, or, Spare Engine to the extent required or permitted by Section 4.04, for alterations the terms hereof;
(iii) transfer or modifications in or additions to permit the Aircraft, transfer of possession of any Airframe or any Engine or (y) Spare Engine to any Person for the purpose of transport United States government pursuant to a Person referred to in the preceding clause lease, contract or other instrument; (x);
iv) subject (iii) Install or permit any Permitted Lessee to install an subject) any Airframe or any Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply any Spare Engine to the Engines, and CRAF Program or transfer (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an transfer) possession of any Airframe or any Engine on an airframe leased or any Spare Engine to Owner the United States Government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided, that such Grantor (or any Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) shall promptly notify the rights Administrative Agent upon transferring possession of the parties to such lease, any Airframe or any such secured financing arrangement, covering such airframe Engine or any Spare Engine pursuant to this clause (iv) and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any a transfer of possession pursuant to CRAFthe CRAF Program, in such notification shall identify by name, notify the Administrative Agent of the name and address and telephone numbers of the responsible Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAFthe CRAF program;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Possession. The Owner, without the prior consent of Mortgagee, Lessee shall not lease without Lessor's prior written consent sublease or otherwise in any manner deliver, relinquish or transfer or relinquish possession Possession of the Aircraft, the Airframe Aircraft or any Engine or Item of Equipment or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that , provided, however, that, so long as no Default or Event of Default shall have occurred and be continuing, and so long as all applicable approvals of the Owner FAA and the Department of Transportation have been obtained for such purpose Lessee may, without such prior written consent of Mortgagee:
(iA) Subject subject or permit any a Permitted Lessee Sublessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, arrangements in each case customary in the United States commercial airline industry and entered into by Owner Lessee or such Permitted Lessee, as the case may be, Sublessee in the ordinary course of its business; PROVIDED, HOWEVERprovided that (i) no such agreement or arrangement contemplates, that if Owner's requires or results in the transfer or divestiture of title to or encumbrance of, the Aircraft, the Airframe or any such Engine is and (ii) if Lessor's (or its Transferee's) title to the Aircraft, the Airframe or any Engine shall be transferred or divested under any such agreement or arrangement, then such Engine transfer or divestiture shall be deemed to have suffered be an Event of Loss as of the date of such divestiture, with respect thereto and Owner Lessee shall comply with Section 4.04(e) 12.01 or 12.02 in respect thereof;
(iiB) Deliver deliver or permit any a Permitted Lessee Sublessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof for testing or other similar purposes or to any third-party maintenance provider organization for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required such Part or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any such Engine or (y) such Part to any Person for the purpose extent required or permitted by the terms of transport to a Person referred to in the preceding clause (x)Sections 9.01 and 9.04;
(iiiC) Install transfer or permit any Permitted Lessee Sublessee, if required by law to install an Engine on an airframe owned by Owner or such Permitted Lesseedo so, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. GovernmentGovernment pursuant to the Civil Reserve Air Fleet Program administered pursuant to Executive Order No. 10999, in which event Owner shall promptly notify Mortgagee in writing of as amended, or any similar or substitute programs, so-long as such transfer of possession and, in does not continue beyond the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command end of the United States Air Force to whom notices must be given Term and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So so long as no Event of Default Lessee shall have occurred and be continuing, and subject to (A) promptly notify Lessor upon the provisions subjection of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding such program and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations provide Lessor with the country name and address of domicile of such Permitted Foreign Air Carrier (orthe appropriate party to whom notice must be given pursuant to Section 20 hereof, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations promptly notify Lessor upon transferring possession of the parties thereto enforceable under Airframe or any Engine to the laws Government pursuant to such program;
(D) install or permit a Permitted Sublessee to install any Engine on an airframe owned by Lessee free and clear of such jurisdictionall Liens, except (wi) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, those of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe type permitted by Section 15 hereof and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title those which apply only to the Aircraftengines (other than Engines), Airframe or Engines in the event of the requisition by appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such government of such title airframe (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title but not to the Aircraft, Airframe or Engines by the government of such jurisdiction so long airframe as the Aircraft, Airframe or Engines are subject to such leasean entirety) and (zii) the agreement rights of such Permitted Air Carrier that its rights other air carriers under normal interchange agreements which are customary in the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;United States
Appears in 1 contract
Samples: Lease Agreement (Airlease LTD)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will comply with the notice requirement of Section 6.1.5 of the Participation Agreement and will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:: TRUST INDENTURE 16-1
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the TRUST INDENTURE 16-1 case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. TRUST INDENTURE 16-1 In the case of any lease permitted under this Section 4.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Note Holder and Related Note Holder by acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and Related Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Loan Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Loan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any subject such Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's the Company’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or such Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, maintenance or reconditioning, restoration, storage, maintenance, overhaul work on or other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or such Engine to any Permitted Lessee Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or such Engine to the CRAF Program or transfer possession of the Airframe or such Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that the Company (A) shall promptly notify the Loan Trustee upon transferring possession of the Airframe or such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased, purchased or owned by the Company (or any Permitted Lessee) subject to a lease, conditional sale and/or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or any conditional sale or security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Loan Trustee (it being understood that an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, in such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding the installation thereof on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of , if such installation shall adversely affect the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, Loan Trustee’s security interest in such notification shall identify Engine, the Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement Company with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunderSection 7.05(b); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So lease such Engine or the Airframe and Engines to any United States air carrier as to which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. §§41101-41112) or successor provision that gives like authority, or to any manufacturer of airframes or engines (or an Affiliate thereof acting under an unconditional guarantee of such manufacturer), so long as such manufacturer and, if applicable, such Affiliate is domiciled in the United States); provided that no Event of Default shall have occurred exist at the time any such lease is entered into; and
(ix) lease such Engine or the Airframe and be continuing, and subject Engines to (A) any foreign air carrier that is at the provisions inception of the immediately following paragraphlease based in and a domiciliary of a country listed in Exhibit B hereto, enter into (B) any foreign manufacturer of airframes or engines (or a foreign Affiliate of a United States or foreign manufacturer of airframes or engines acting under an unconditional guarantee of such manufacturer), so long as such foreign manufacturer or (if applicable) foreign Affiliate is domiciled in a country indicated with an asterisk on Exhibit B hereto, or (C) any foreign air carrier consented to in writing by the Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (x) in the case of a lease to, or guarantee by, any entity pursuant to this Section 7.02(a)(ix), (1) other than a foreign carrier principally based in Taiwan, the United States maintains diplomatic relations with respect to the Aircraftcountry in which such entity is based and domiciled at the time such lease is entered into, Airframe or any Engine to any Permitted Air Carrier that (2) no Event of Default exists at the time such lease is entered into and (3) such entity is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, and (y) in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and any foreign manufacturer or foreign Affiliate under clause (B) Owner above, the re-registration conditions set forth in Section 7.02(e) shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory be satisfied notwithstanding anything to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business contrary in such jurisdiction, if not already so registered clause (B); provided that the rights of any lessee or qualified, as a result, in whole or in part, other transferee who receives possession of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including the Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer or possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and Section 7.02(c) or (y) permit any action not permitted to be taken by the Company with respect to the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. The Loan Trustee, and each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note, agrees, for the benefit of the Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to the Company (or any Permitted Lessee) or leased to or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Loan Trustee and the Noteholders will not acquire or claim, as against the Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in (A) any engine or engines owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such Permitted Air Carrier lease or conditional sale or other security agreement. The Loan Trustee acknowledges that any “wet lease” or other similar arrangement under applicable law;which the Company maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 1 contract
Possession. The OwnerBorrower shall not, without the Mortgagee’s prior consent of Mortgageewritten consent, shall not lease or otherwise in any manner deliver, transfer transfer, or relinquish possession of the Aircraft, the Airframe Airframe, or any Engine Engine, or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner Borrower may, without such prior written consent of Mortgageeconsent:
(i1) Subject subject or permit any Permitted Lessee to subject (iaa) the Airframe to normal interchange agreements or (iibb) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Borrower or such Permitted Lessee, as the case may be, Lessee in the ordinary course of business; PROVIDED, HOWEVERprovided, that if Owner's Borrower’s title to any such Airframe or Engine is divested under any such agreement or arrangement, then such Airframe or Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner Borrower shall comply with Section 4.04(e4.4(e) in respect thereof;
(ii2) Deliver deliver or permit any Permitted Lessee to deliver possession of the Aircraft, the Airframe, any Engine Engine, or any Part (xaa) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance maintenance, or overhaul work on the Aircraft, the Airframe, any Engine Engine, or any Part, or, to the extent required or permitted by Section 4.044.4, for alterations or modifications in or additions to the Aircraft, Airframe the Airframe, or any Engine Engine, or (ybb) to any Person for the purpose of transport to a Person referred to in the preceding clause (xaa);
(iii3) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Borrower or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, except (xaa) Permitted Liens and those that do not apply to the Engines, and (ybb) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i4.2(b)(1);
(iv4) Install install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Borrower or such Permitted Lessee, or purchased or owned by Owner Borrower or such Permitted Lessee subject to a mortgage, security agreement, conditional sale sale, or other secured financing arrangement, but only if (xaa) such airframe is free and clear of all Liens, except (Ai) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe airframe, and (Bii) Liens of the type permitted by clause (iii3) above of this Section 4.2(b), and (ybb) Owner Borrower or Permitted Lessee, as the case may be, shall have Lessee has received from the lessor, mortgageesecured party, secured party or conditional seller, seller in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title title, or interest in, or Lien on, such Engine by reason of the installation of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v5) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner Borrower or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii3) or nor clause (iv4) above is applicableof this Section 4.2(b) applies; PROVIDED, HOWEVERprovided, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Borrower shall comply with Section 4.04(e4.4(e) hereof in respect thereof;
(vi6) Transfer transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe the Airframe, or any Engine to the (aa) a U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of Government Entity pursuant to CRAF or (bb) to any such transfer of possession and, other Government Entity in the case country of any transfer pursuant to CRAFregistry whose obligations are supported by the full faith and credit of such country when required by applicable Law. Neither such event shall, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command avoidance of the United States Air Force doubt, be deemed to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAFan Event of Loss;
(vii7) Enter enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's provided, that Borrower’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangementLease;
(viii) So long as 8) if no Special Default or Event of Default shall have occurred and be continuingexists, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe the Airframe, or any Engine to with any Permitted Air Carrier that of the following Persons (so long as such Person is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution dissolution, or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver receiver, or similar personPerson): (aa) any Permitted Air Carrier or Permitted Manufacturer; PROVIDED THATbut only if, in the case only of a lease to a Permitted Foreign Air CarrierCarrier or a Non-U.S. domiciled Permitted Manufacturer (and pursuant to such lease, (A) the Aircraft is to be registered outside the United States maintains diplomatic relations with States), Borrower furnishes Mortgagee a favorable opinion, in form and substance satisfactory to Mortgagee, of counsel selected by Borrower and satisfactory to Mortgagee located in the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such or Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed leaseManufacturer, (x) that there are no possessory rights in favor of Borrower, any Permitted Lessee, or any third party (including any Government Entity) which would, upon bankruptcy or other default by Borrower (assuming that the Permitted Lessee is not itself the subject of any bankruptcy proceedings), prevent or unreasonably delay the return of the Aircraft to Borrower in accordance with and when permitted by the terms of this Mortgage upon Mortgagee's Lien ’s exercise of its remedies hereunder and the rights of Mortgagee hereunder shall not in respect of, any other way be materially adversely affected and (y) to such further effect as the Lenders may require; (bb) any Affiliate of Borrower that is a U.S. Air Carrier; or (cc) a U.S. Government Entity or a Government Entity of the country of registration of the Aircraft, Airframe in each case bearing the full faith and Engines will credit of the government; provided, that (1) the rights of any transferee who receives possession by reason of a transfer permitted by this Section 4.2(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be recognized in such jurisdictionsubject and subordinate to this Mortgage and to Mortgagee’s rights, powers and remedies hereunder, including (x) Mortgagee’s right to repossess the Aircraft pursuant to Section 5.2, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title Mortgagee’s right to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to terminate and avoid such lease) , delivery, transfer or relinquishment of possession if an Event of Default exists, and (z) the agreement right to require such Person to deliver the Aircraft, the Airframe, and Engines subject to such transfer forthwith if an Event of such Permitted Air Carrier that its rights under Default exists, (2) Borrower shall remain primarily liable for the lease are subject performance of this Mortgage and subordinate to all the terms and conditions of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;Mortgage and the other Operative Agreements shall remain in effect, (3) no lease or transfer of possession otherwise in compliance with this Section 4.2(b) shall (aa) result in any registration or re-registration of an Aircraft (except to the extent permitted by Section 4.2(e)) or the maintenance, operation, or use thereof except in compliance with Sections 4.2(c) and 4.2(d), or (bb) permit any action not permitted to Borrower hereunder and (4) Borrower shall notify Lenders promptly after entering into any lease permitted by this Section 4.2(b).
Appears in 1 contract
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Collateral Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraftany Airframe, the Airframe or any Engine or Part, install any Engine, or permit any Engine to be installed, on installed in any airframe other than the AirframeAirframes or enter into any Wet Lease; except PROVIDED that so long as no Default of the Owner type referred to in Sections 9.01 or 9.05 of the Credit Agreement or Event of Default shall have occurred and be continuing at the time of such lease, delivery, transfer or relinquishment of possession or installation or such Wet Lease, so long as the action to be taken shall not deprive the Collateral Agent of the first priority Lien (subject to Permitted Liens) of this Mortgage on the Collateral and so long as the Company (or any Lessee) shall comply with the provisions of Sections 3.2(c) and 3.6 hereof, the Company may, without such the prior written consent of Mortgageethe Collateral Agent:
(i) Subject subject any Airframe or permit any Permitted Lessee to subject (i) the Engine or engines installed on an Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements pooling or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company (or such Permitted any Lessee, as the case may be, ) in the ordinary course of its business; PROVIDEDPROVIDED that (A) no such agreement or arrangement contemplates or requires the transfer of title to any Airframe, HOWEVER, that (B) if Ownerthe Company's title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of with respect to such Engine and the date of such divestiture, and Owner Company shall (or shall cause Lessee to) comply with Section 4.04(e3.4(e) hereof in respect thereof, and (C) any interchange agreement to which the Airframes may be subject shall be with a U.S. Air Carrier or a Foreign Air Carrier;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or Engine or any Part (x) to the manufacturer thereof (or for delivery thereto) or to any third-party maintenance provider organization (or for delivery thereto) for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any such Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, such Airframe or any Engine to the extent required or (ypermitted by the terms of Section 3.4(d) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)hereof;
(iii) Install or permit install any Permitted Lessee to install an Engine on an airframe which is owned by Owner the Company (or such Permitted any Lessee, as the case may be, ) free and clear of all Liens, except except: (xA) Permitted Liens and those that do not which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (yother than Parts) installed on such airframe (but not to the airframe as an entirety), (B) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that which would be permitted under Section 4.02(b)(iclause (i) above PROVIDED that the Company's title to any such Engine and the first priority Lien of this Mortgage shall not be divested or impaired as a result thereof and (C) mortgage liens or other security interests, PROVIDED that (as regards this subclause (C)) such mortgage liens or other security interests effectively provide that such Engine shall not become subject to such mortgage or security interest, notwithstanding the installation thereof on such airframe;
(iv) Install or permit install any Permitted Lessee to install an Engine on an airframe which is leased to Owner the Company (or such Permitted any Lessee, ) or purchased by Owner the Company (or such Permitted Lessee any Lessee) subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if PROVIDED that (x) such airframe is free and clear of all Liens, except except: (A) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir assignees, covering such airframe and (B) Liens of the type permitted by clause (iii) above of this Section 3.2(a) and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), whereby such Person agrees effectively provides that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is shall not become subject to the Lien lien of this Trust Indenturesuch lease, conditional sale or other security agreement, notwithstanding the installation thereof on such airframe;
(v) Install or permit install any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such Permitted any Lessee), leased to Owner the Company (or such Permitted any Lessee, ) or purchased by Owner the Company (or such Permitted Lessee any Lessee) which is subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or nor clause (iv) above of this Section 3.2(a) is applicable; PROVIDED, HOWEVER, PROVIDED that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner that the Company shall (or shall cause any Lessee to) comply with Section 4.04(e3.4(e) hereof in respect thereof, the Collateral Agent not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Company with such Section 3.4(e);
(vi) Transfer to the extent permitted by Section 3.4(c) hereof, subject any appliances, Parts or other equipment owned by the Company and removed from any Airframe or Engine to any pooling arrangement referred to in such Section;
(vii) subject (or permit any Permitted Lessee to transfer possession of the Aircraft, subject) any Airframe or any Engine to the U.S. GovernmentCivil Reserve Air Fleet Program and transfer (or permit any Lessee to transfer) possession of any Airframe or Engine to the United States of America or any instrumentality or agency thereof pursuant to the Civil Reserve Air Fleet Program, in which event Owner so long as the Company (or any Lessee) shall (A) promptly notify Mortgagee the Collateral Agent upon subjecting such Airframe or Engine to the Civil Reserve Air Fleet Program in writing any contract year and provide the Collateral Agent with the name and address of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Air Mobility Command of the United States Air Force to whom notices notice must be given pursuant to Section 4.2 hereof, and to whom requests (B) promptly notify the Collateral Agent upon transferring possession of the Airframe or claims must be made any Engine to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft United States of America or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any agency or instrumentality thereof pursuant to such charter or Wet Lease or other similar arrangementprogram;
(viii) So long as no Event enter into a Wet Lease for any Airframe or engines then installed thereon with any third party, PROVIDED that if the Company (or any Lessee) shall enter into any Wet Lease for a period of Default more than one year (including renewal options) the Company shall have occurred and be continuing, and subject provide to the provisions Collateral Agent written notice of such Wet Lease (such notice to be given prior to entering into such Wet Lease, if practicable, but in any event promptly after entering into such Wet Lease);
(ix) transfer possession of any Airframe or Engine to the immediately following paragraphUnited States of America or any instrumentality or agency thereof pursuant to a contract, a copy of which shall be provided to the Collateral Agent; or
(x) the Company may, at any time, enter into a any lease with respect to the Aircraft, of any Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of with (A) a lease to a Permitted Foreign U.S. Air Carrier, (B) any Person approved in writing by the Collateral Agent (with the approval of the Required Banks), (C) any Permitted Lessee; or (D) any airline alliance partner of the Company that otherwise meets the requirement of (A), (B) or (C) above or has been previously approved in writing by the Collateral Agent, in any such case, if (1) the lessee under such lease is not subject to a proceeding or final order under applicable bankruptcy, insolvency or reorganization laws on the date such lease is entered into, (2) in the event that the lessee under such lease is a Foreign Air Carrier (other than a Foreign Air Carrier principally based in Taiwan), the United States maintains diplomatic relations with the country of domicile of in which such Permitted Foreign Air Carrier foreign air carrier is principally based at the time such lease is entered into (or, in the case of a lease to a lessee principally based in Taiwan, maintains diplomatic relations at least as good as those in effect on the Closing Temporary Amendment Effective Date) and (B3) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of event that the lessee under such Permitted lease is a Foreign Air Carrier, the Collateral Agent shall receive at the time such lease is entered into an opinion of counsel (in form and substance reasonably satisfactory to the Collateral Agent) to the Company to the effect that (vI) the terms of the proposed lease will be legal, valid, binding and (subject to customary exceptions in foreign opinions generally) enforceable against the proposed lessee in the country in which the proposed lessee is principally based, (II) there exist no possessory rights in favor of the lessee under such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionlessee's country of domicile that would, upon bankruptcy or insolvency of or other default by the Company and assuming at such time such lessee is not insolvent or bankrupt, prevent the return or repossession of the Aircraft in accordance with the terms of this Mortgage, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (yIII) the Laws laws of such jurisdiction lessee's country of domicile require fair compensation by the government of such jurisdiction, jurisdiction payable in a currency freely convertible into Dollars, Dollars for the loss of title to use of the Aircraft, Airframe or Engines Aircraft in the event of the requisition by such government of such title use, and (unless Owner shall provide insurance in IV) the amounts required with respect laws of such lessee's country of domicile would give recognition to hull insurance under this Trust Indenture covering the requisition of Company's title to the Aircraft, to the registry of the Aircraft in the name of the Company (or the proposed lessee, as "lessee", as appropriate), and to the Lien of this Mortgage. The rights of any Lessee or other transferee who receives possession by reason of a transfer permitted by this Section 3.2(a) (other than the transfer of an Engine which is deemed an Event of Loss) shall be effectively subject and subordinate to, and any lease permitted by this Section 3.2(a) shall be expressly subject and subordinate to, all the terms of this Mortgage and to the Lien of this Mortgage, including, without limitation, the covenants contained in this Section 3.2 and the Collateral Agent's rights to foreclosure and possession pursuant to Section 4.2 hereof and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance of all of the terms of this Mortgage to the same extent as if such lease or transfer had not occurred, and, except as otherwise provided herein, the terms of any such lease shall not permit any Lessee to take any action not permitted to be taken by the Company in this Mortgage with respect to the Aircraft. No pooling agreement, lease or other relinquishment of possession of any Airframe or Engines Engine, or Wet Lease shall in any way discharge or diminish any of the Company's obligations to the Collateral Agent hereunder or constitute a waiver of the Collateral Agent's rights or remedies hereunder. Any lease permitted under this Section 3.2(a) shall expressly prohibit any further sublease by the government Lessee. The Collateral Agent agrees, for the benefit of the Company (and any Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine) owned by the Company (or any Lessee), any lessor of any engine (other than an Engine) leased to the Company (or any Lessee) and any conditional vendor of any engine (other than an Engine) purchased by the Company (or any Lessee) subject to a conditional sale agreement or any other security agreement, that no interest shall be created hereunder in any engine so owned, leased or purchased and that neither the Collateral Agent nor its successors or assigns will acquire or claim, as against the Company (or any Lessee) or any such mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine as the result of such jurisdiction so long as engine being installed on the AircraftAirframes; PROVIDED, Airframe HOWEVER, that such agreement of the Collateral Agent shall not be for the benefit of any lessor or Engines are secured party of any airframe (other than the Airframes) leased to the Company (or any Lessee) or purchased by the Company (or any Lessee) subject to a conditional sale or other security agreement or for the benefit of any mortgagee of or any other holder of a security interest in an airframe owned by the Company (or any Lessee), unless such lessor, conditional vendor, other secured party or mortgagee has expressly agreed (which agreement may be contained in such lease, conditional sale or other security agreement or mortgage) that neither it nor its successors or assigns will acquire, as against the Collateral Agent, any right, title or interest in an Engine as a result of such Engine being installed on such airframe. The Company shall provide to the Collateral Agent (i) written notice of any lease hereunder (such notice to be given not later than five days prior to entering into such lease) and (zii) the agreement a copy of such Permitted Air Carrier that its rights under the each lease are subject and subordinate to all the terms which has a term of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;more than three months.
Appears in 1 contract
Samples: Aircraft Mortgage and Security Agreement (Northwest Airlines Corp)
Possession. The Owner(i) Lease, without Assignment and Transfer. LESSEE WILL NOT ASSIGN THIS LEASE OR ANY RIGHTS OR OBLIGATIONS HEREUNDER OR INTEREST HEREIN (EXCEPT AS PROVIDED IN SECTION 8(e) BELOW) OR SUBLEASE, WET LEASE OR OTHERWISE IN ANY MANNER TRANSFER, DELIVER OR RELINQUISH POSSESSION OR USE OF THE AIRCRAFT, AIRFRAME OR ANY ENGINE OR INSTALL ANY ENGINE OR PERMIT ANY ENGINE TO BE INSTALLED ON ANY AIRFRAME OTHER THAN THE AIRFRAME; provided, that, so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom and so long as the prior consent of Mortgagee, action to be taken shall not lease adversely affect Lessor's title to or otherwise other interest in, or the Lien of the Indenture on, the Aircraft, the Airframe or either of the Engines or this Lease or the insurance required to be maintained hereunder and Lessee is
(1) subject any Engine to a normal interchange, maintenance, servicing or pooling agreement or similar arrangement with a Permitted Sublessee, in each case customary in the airline industry of which Lessee is a part and entered into in the ordinary course of its business; provided that no transfer of the registration of any manner deliverEngine shall be effected in connection therewith; and provided, further, that (A) no such agreement or arrangement contemplates, results in or requires the transfer of title to any Engine, and (B) if Lessor's title or relinquish Foreign Lessor's (so long as the Foreign Lease Agreement is in effect) to any Engine shall be divested under any such agreement or arrangement, such divestiture shall be deemed to be an Event of Loss with respect to such Engine and not an Event of Default and Lessee shall comply with Section 11(b) hereof in respect thereof;
(2) deliver possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof thereof, or in accordance with the Maintenance Program to any third-party maintenance provider an FAA certified repair station, for testing, service, storage, repair, maintenance maintenance, inspection or overhaul work on the such Aircraft, Airframe, any Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the such Aircraft, Airframe or any Engine to the extent required or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)Section 9 hereof;
(iii3) Install transfer possession of the Aircraft or permit the Airframe to the United States of America or any Permitted instrumentality or agency thereof pursuant to a sublease;
(i) subject the Airframe to the Civil Reserve Air Fleet Program and transfer possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program, so long as Lessee shall promptly notify Lessor upon transferring possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program and provide Lessor with the name and address of the Contracting Office
(ii) subject the Airframe to (a) a service contract with the United States Government, a copy of which shall be provided to Lessor, providing for possession to be held by the United States Government for a period not extending beyond the end of the Term, or (b) a requisition for use by the United States Government not constituting an Event of Loss;
(5) install an Engine on an airframe (other than the Airframe) owned by Owner or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, Liens except (xA) Permitted Liens and those that do Liens which apply only to engines (other than the Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not apply to the Engines, airframe as an entirety) and (yB) the rights of third parties participants under normal interchange agreements which are customary in the airline industry and do not contemplate, permit, result in or pooling agreements and arrangements require the transfer of title to the type that would be permitted under Section 4.02(b)(i)airframe or engines installed thereon;
(iv6) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if security agreement; provided that: (xA) such airframe is free and clear of all Liens, Liens except (A) the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe and (B) except Liens of the type permitted by clause clauses (iiiA) above and (yB) Owner of Section 6(a)(i)(5) and the Lien of any mortgage which provides that each Engine leased to Lessee hereby shall not become subject to the lien thereof or Permitted to any rights of any party thereunder other than Lessee (with respect to Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe's rights expressly granted hereunder), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason notwithstanding the installation of such Engine being installed on such any airframe at any time while such Engine is subject to the Lien of such mortgage, unless and until Lessee shall become the owner of such Engine and Lessor shall have no further interest therein, all pursuant to the express terms of this Trust Indenture;Lease; and (B) there shall be in effect a written agreement of the lessor or secured party of such airframe (which may be contained in the lease or conditional sale or other security agreement covering such airframe) substantially similar in effect to the agreement of Lessor in Section 6(b) below whereby such lessor or secured party effectively and expressly agrees that neither it nor its successors or assigns
(v7) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iiiSection 6(a)(i)(5) or (ivSection 6(a)(i)(6) above is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner Lessee shall comply with Section 4.04(e11(b) hereof in respect thereof, Lessor not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Lessee with such Section 11(b);
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter 8) enter into a charter or Wet Lease or other similar arrangement with respect to for the Aircraft or the Airframe and engines installed thereon in the ordinary course of Lessee's business for a period not extending beyond the Term; provided that if Lessee (or any other aircraft on which Permitted Sublessee) shall enter into any Engine may Wet Lease for a period of more than one year (including renewal options) Lessee shall provide to Lessor written notice of such Wet Lease (such notice to be installed (which shall not be considered a transfer of possession hereundergiven prior to entering into such Wet Lease, if practicable, but in any event promptly after entering into such Wet Lease); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;or
(viii9) So long as no Event of Default shall have occurred and be continuing, and subject to sublease the provisions of Aircraft or the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect Sublessee on the Closing Dateterms and conditions set forth in Section 6(a)(iii) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;below.
Appears in 1 contract
Samples: Aircraft Lease Agreement (America West Airlines Inc)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);; TRUST INDENTURE 2024-1 (AA and A)
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such TRUST INDENTURE 2024-1 (AA and A) jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. TRUST INDENTURE 2024-1 (AA and A) Mortgagee hereby agrees, and each Note Holder and Related Note Holder by acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or owned by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and Related Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;law (subject to customary exceptions); provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Note Holder and Related Note Holder by acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and Related Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Southwest Airlines Co)
Possession. The OwnerAmerican shall not, without the prior written consent of Mortgageethe Required Lenders, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the any Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the an Airframe; except provided that the Owner American may, so long as no Event of Default shall have occurred and be continuing, and so long as the action to be taken shall not deprive the Agent of the perfected Lien of this Security Agreement on any Airframe or (subject to the provisos to clauses (i)(C) and (vii) of this Section 5.02(a)) any Engine, and in any event so long as American shall comply with the provisions of Section 5.06, without such the prior written consent of Mortgageethe Agent or any Secured Party:
(i) Subject or permit subject any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, American in the ordinary course of businessits business with any other U.S. Air Carrier or with any "foreign air carrier" (as such term is defined in the Transportation Code) as to which there is in force a permit issued pursuant to the Transportation Code (49 U.S.C.ss.ss.41301-41306) or any successor provision that gives like authority (any such U.S. Air Carrier and any such foreign air carrier being hereinafter called a "PERMITTED AIR CARRIER"); PROVIDEDprovided that (A) no transfer of the registration of any Airframe shall be - effected in connection therewith, HOWEVER, that (B) no such agreement or arrangement contemplates or requires the - transfer of title to any Airframe and (C) if OwnerAmerican's title to any such Engine is shall be divested under - any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestiture, Engine and Owner American shall comply with Section 4.04(e5.05(a) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider organization for testing, service, repair, maintenance or maintenance, overhaul work or other similar purpose on the Aircraft, Airframe, any such Airframe or such Engine or any Part, or, part thereof or for alterations or modifications in or additions American Airlines - Aircraft Security Agreement to such Airframe or such Engine to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose terms of transport to a Person referred to in the preceding clause (x)this Security Agreement;
(iii) Install transfer possession of any Airframe or permit any Permitted Lessee Engine to the United States government pursuant to a lease, contract or other instrument;
(iv) subject any Airframe or any Engine to the CRAF Program or transfer possession of any Airframe or any Engine at any time to the United States government or any instrumentality or agency thereof in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer pursuant to the CRAF Program); provided that American (A) shall promptly notify the Agent upon - transferring possession pursuant to this clause (iv) and (B) in the case of a transfer of possession - pursuant to the CRAF Program, shall within 60 days of such transfer notify the Agent of the name and address of the responsible Contracting Officer Representative for the Military Airlift Command of the United States of America or other appropriate person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is American free and clear of all Liens, except (A) Permitted Liens and Liens which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety)and (B) the rights of other Permitted Air Carriers under interchange agreements which would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to American or purchased or owned by American subject to a conditional sale or other security agreement; provided that (A) such airframe is free and clear of all - Liens except the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe and (B) except Liens of the type permitted by clauses (A) and (B) of clause (iiiv) above of this Section 5.02(a) and (yB) Owner or Permitted Lessee, as the case may be, American shall have received obtained from the lessor, mortgagee, lessor or secured party or conditional seller, in respect of such airframe, - airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, lease or conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Agent (it being understood that an agreement from such lessor or secured party substantially in the form of the final sentence of the penultimate paragraph of this Section 5.02(a) shall be deemed to be satisfactory to the Agent), whereby such Person lessor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureSecurity Agreement;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted LesseeAmerican, leased to Owner American or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee American subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 5.02
(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner American shall comply with Section 4.04(e5.05(a) hereof in respect thereof;
(vi) Transfer , the Agent not intending hereby to waive any right or permit any Permitted Lessee interest it may have to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify Engine under applicable law until compliance by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement American with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereundersuch Section 5.05(a); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;American Airlines - Aircraft Security Agreement
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe any Engine or any Engine Airframe and Engines or engines then installed on any Airframe to any Permitted Air Carrier Lessee; provided that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and (i) such lease shall provide that the lessee shall not have substantially all of its property sublease the Aircraft except in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of connection with an integrated transaction involving a lease sublease to a Permitted Foreign Air Carrier, (A) Lessee commencing at the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms inception of such lease are and (ii) the legal, valid Aircraft Value of any such Engines and binding obligations Airframes leased to any Permitted Lessee referred to in clause (c) of the parties thereto enforceable under definition of "Permitted Lessee" shall at no time exceed 5% of the laws Aggregate Collateral Value; provided that the rights of any transferee who receives possession by reason of a transfer permitted by this Section 5.02(a) (other than the transfer of an Engine which is deemed an Event of Loss) shall be, during the period of such jurisdictionpossession, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to to, and any lease permitted by this Section 5.02(a) shall be made expressly subject and subordinate to, all the terms of this Trust Indenture is enforceable Security Agreement, including, without limitation, the Agent's rights to take possession pursuant to Section 7.01 and to avoid and terminate such lease upon such repossession, and American shall, in all events, remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Security Agreement (including, without limitation, the terms and conditions set forth in Section 5.02(c) and Section 5.06) to the same extent as if such lease or transfer had not occurred, and any such lease shall include appropriate provisions for the maintenance, operation, use and insurance of the Aircraft and shall permit inspection as provided in Section 5.03 and shall not result in any registration or re-registration of the Aircraft except to the extent permitted in Section 5.02(e). No interchange agreement, pooling agreement, lease or other relinquishment of possession of any Airframe or any Engine shall in any way discharge or diminish any of American's obligations hereunder or under any other Financing Document. The Agent and the Secured Parties hereby agree, for the benefit of the lessor or secured party of any airframe or engine leased to American or purchased or owned by American subject to a conditional sale or other security agreement, that the Agent and the Secured Parties will not acquire or claim, as against such Permitted Air Carrier lessor or secured party, any right, title or interest in any engine or engines owned by the lessor under applicable law;such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of such engine or engines being installed on any Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement. The Agent acknowledges that any "wet lease" or other similar arrangement under which American maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 5.02(a).
Appears in 1 contract
Samples: Credit Agreement (Amr Corp)
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Loan Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Loan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any subject such Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's the Company’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or such Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, maintenance or reconditioning, restoration, storage, maintenance, overhaul work on or other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or such Engine to any Permitted Lessee Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or such Engine to the CRAF Program or transfer possession of the Airframe or such Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided, that the Company (A) shall promptly notify the Loan Trustee upon transferring possession of the Airframe or such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased, purchased or owned by the Company (or any Permitted Lessee) subject to a lease, conditional sale and/or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or any conditional sale or security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Loan Trustee (it being understood that an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, in such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding the installation thereof on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of , if such installation shall adversely affect the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, Loan Trustee’s security interest in such notification shall identify Engine, the Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement Company with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunderSection 7.05(b); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So lease such Engine or the Airframe and Engines to any United States air carrier as to which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. §§41101-41112) or successor provision that gives like authority, or to any manufacturer of airframes or engines (or an Affiliate thereof acting under an unconditional guarantee of such manufacturer), so long as such manufacturer and, if applicable, such Affiliate is domiciled in the United States); provided that no Event of Default shall have occurred exist at the time any such lease is entered into; and
(ix) lease such Engine or the Airframe and be continuingEngines to (A) any foreign air carrier other than those set forth in clause (B), and subject to (B) any foreign air carrier that is at the provisions inception of the immediately following paragraphlease based in and a domiciliary of a country listed in Exhibit B hereto, enter into (C) any foreign manufacturer of airframes or engines (or a foreign Affiliate of a United States or foreign manufacturer of airframes or engines acting under an unconditional guarantee of such manufacturer), so long as such foreign manufacturer or (if applicable) foreign Affiliate is domiciled in a country indicated with an asterisk on Exhibit B hereto, or (D) any foreign air carrier consented to in writing by the Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (w) in the case of a lease to, or guarantee by, any entity pursuant to this Section 7.02(a)(ix), (1) other than a foreign carrier principally based in Taiwan, the United States maintains diplomatic relations with respect to the Aircraftcountry in which such entity is based and domiciled at the time such lease is entered into, Airframe or any Engine to any Permitted Air Carrier that (2) no Event of Default exists at the time such lease is entered into and (3) such entity is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, (x) in the case only of a lease to a Permitted Foreign Air Carrier, foreign air carrier under clause (A) above, the United States maintains diplomatic relations with Loan Trustee receives at the country of domicile time of such Permitted Foreign Air Carrier lease (or, 1) written confirmation from each of the Rating Agencies that such lease would not result in a reduction of the case rating for any class of Taiwan, diplomatic relations at least as good as those in effect on Pass Through Certificates below the Closing Date) then current rating for such class of Pass Through Certificates then rated by such Rating Agency or a withdrawal or suspension of the rating of any such class of Pass Through Certificates and (B2) Owner shall have furnished Mortgagee a favorable an opinion of counsel, counsel to the Company (such counsel to be reasonably satisfactory to Mortgagee, the Loan Trustee) to the effect that there exist no possessory rights in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations favor of the parties thereto enforceable lessee under the laws of such jurisdictionlessee’s country which would, (w) it upon bankruptcy or insolvency of or other default by the Company and assuming at such time such lessee is not necessary for Mortgagee insolvent or bankrupt, prevent the taking of possession of any such Engine or the Airframe and any such Engine by the Loan Trustee in accordance with and when permitted by the terms of Section 4.02 upon the exercise by the Loan Trustee of its remedies under Section 4.02, and (y) in the case of a lease to register any foreign manufacturer or qualify foreign Affiliate under clause (C) above, the re-registration conditions set forth in Section 7.02(e) shall be satisfied notwithstanding anything to do business the contrary in such jurisdiction, if not already so registered clause (C); provided that the rights of any lessee or qualified, as a result, in whole or in part, other transferee who receives possession of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including the Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer or possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and Section 7.02(c) or (y) permit any action not permitted to be taken by the Company with respect to the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. The Loan Trustee, and each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note, agrees, for the benefit of the Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to the Company (or any Permitted Lessee) or leased to or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Loan Trustee and the Noteholders will not acquire or claim, as against the Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in (A) any engine or engines owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such Permitted Air Carrier lease or conditional sale or other security agreement. The Loan Trustee acknowledges that any “wet lease” or other similar arrangement under applicable law;which the Company maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 1 contract
Possession. The OwnerCompany, without the prior consent of Mortgageethe Collateral Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the any Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the associated Airframe; except that the Owner Company may, without such prior written consent of Mortgageethe Collateral Agent:
(i) Subject or permit any Permitted Lessee to subject (i) the any Airframe to normal interchange agreements or and (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that (A) no transfer of the registration of any Airframe or Engine shall be effected in connection therewith and (B) if Owner's the Company’s title to any such Airframe or Engine is divested under any such agreement or arrangement, then such Airframe or Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner the Company shall comply with Section 4.04(e3.04(e) or 3.05, as applicable, in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the any Aircraft, Airframe, any Engine or any Part (x) to the Airframe Manufacturer, the Engine Manufacturer, the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the such Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.043.04, for alterations or modifications in or additions to the such Aircraft, Airframe or any Engine or Engine, (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)) or (z) to any storage facility;
(iii) Install or permit any Permitted Lessee to install an any Engine on an airframe owned by Owner the Company or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Enginessuch Engine, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i3.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an any Engine on an airframe leased to Owner the Company or such Permitted Lessee, or purchased owned by Owner the Company or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner the Company or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenturethe Mortgage;
(v) Install or permit any Permitted Lessee to install an any Engine on an airframe owned by Owner leased to the Company or such Permitted Lessee, leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner the Company or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other security agreement secured financing arrangement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e3.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the any Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner the Company shall promptly notify Mortgagee the Collateral Agent in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Officer Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft any Aircraft, or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the any Aircraft, Airframe or any Engine to any Permitted Air Carrier that both is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall does not then have substantially all of its property in the possession of any liquidator, trustee, receiver or similar personperson or any other Person approved in writing by the Collateral Agent; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains normal diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner the Company shall have furnished Mortgagee to the Collateral Agent and the Banks a favorable opinion reasonably acceptable to the Collateral Agent of counsel, reasonably satisfactory to Mortgagee, reputable counsel in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (w) it is not necessary for Mortgagee the Collateral Agent or any Bank to register or qualify to do business in such jurisdictioncountry, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's the Collateral Agent’s Lien in respect of, the such Aircraft, Airframe and Engines Engine will be recognized as a first priority (subject to Permitted Liens) security interest and enforceable, subject to customary exceptions not materially less favorable to the Collateral Agent than on the Closing Date in the United States, in such jurisdictionjurisdiction (including the Collateral Agent’s right to repossess the Aircraft), (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the such Aircraft, Airframe or Engines Engine in the event of the requisition by such government of such title (unless Owner the Company shall provide insurance in the amounts required with respect to hull insurance under the Mortgage and this Trust Indenture Agreement covering the requisition of title to the such Aircraft, Airframe or Engines Engine by the government of such jurisdiction so long as the such Aircraft, Airframe or Engines are Engine is subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of the Mortgage and this Trust Indenture Agreement is enforceable against such Permitted Air Carrier under applicable law;law (subject to customary exceptions) and if the lessee is a U.S. Certificated Air Carrier, the Company will be entitled as lessor of the benefits of Section 1110 of the Bankruptcy Code in which the lessee is the debtor; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 3.02(b) (other than by a transfer of any Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of the Mortgage and this Agreement, including the rights of the Collateral Agent to void such lease in the exercise of its rights to repossession of any Airframe or any Engine hereunder, (2) the Company shall remain primarily liable for the performance of all of the terms of the Mortgage and this Agreement and all the terms and conditions of the Mortgage and the other Loan Papers shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 3.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 3.02(e), or result in the maintenance, operation or use thereof except in compliance with Sections 3.02(c) and 3.02(d) or (y) permit any action not permitted to the Company hereunder. In the case of any lease permitted under this Section 3.02(b), the Company will include in such lease appropriate provisions which (s) make such lease expressly subject and subordinate to all of the terms of the Mortgage and this Agreement, including the rights of the Collateral Agent to void such lease in the exercise of its rights to repossession of any Airframe or any Engine hereunder; (t) require the Permitted Lessee to comply with the terms of Section 3.06; and (u) require that any Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Company’s possession and use provided in the Mortgage and this Agreement. No lease permitted under this Section 3.02(b) shall be entered into unless (w) the Company shall provide written notice to the Collateral Agent (such notice in the case of a lease to a U.S. Certificated Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) the Company shall furnish to the Collateral Agent evidence reasonably satisfactory to the Collateral Agent that the insurance required by Section 3.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of the Collateral Agent in any Aircraft, Airframe and Engines; and (z) the Company shall reimburse the Collateral Agent for all of their respective reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel to the Collateral Agent incurred by them in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Company from its primary obligation for the performance of its obligations under the Mortgage and this Agreement, the Company may in its sole discretion permit a Permitted Lessee to exercise any or all rights which the Company would be entitled to exercise under Sections 3.02 (other than the right to lease any Aircraft, Airframe or Engine pursuant to Section 3.02(b)(viii)) and 3.04, and may cause a Permitted Lessee to perform any or all of the Company’s obligations under Article III, and the Collateral Agent agrees to accept actual and full performance thereof by a Permitted Lessee in lieu of performance by the Company. The Company shall provide the Collateral Agent a copy of each Permitted Lease which has a term of more than one (1) year promptly after execution thereof. In addition, the Company shall collaterally assign to the Collateral Agent (and take all further actions in order to create, grant, establish, preserve, protect and perfect the validity, perfection and priority of the Liens and security interests created or intended to be created by the Mortgage), as additional security for the Obligations, Company’s rights, but not its obligations, under any such Permitted Lease having a term in excess of one (1) year (provided that so long as no Event of Default shall have occurred and be continuing hereunder, Company shall be entitled to exercise all rights and remedies with respect to such Permitted Lease). In connection with the foregoing assignment, the Company shall deliver any chattel paper originals of any Permitted Lease having a term in excess of one (1) year to the Collateral Agent. The Collateral Agent hereby agrees and each other Secured Party by execution of the Credit Agreement or an “Assignment and Assumption” thereunder agrees, for the benefit of each lessor, conditional seller or secured party of any engine leased to, or purchased by, the Company or any Permitted Lessee subject to a lease, conditional sale or security agreement that the Collateral Agent, each other Secured Party, and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller or secured party, any right, title or interest in any engine as the result of such engine being installed on an Airframe at any time while such engine is subject to such lease, conditional sale or security agreement and owned by such lessor or conditional seller or subject to a security interest in favor of such secured party.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Southwest Airlines Co)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that so long as no Event of Default shall have occurred and be continuing at the time of such lease, delivery, transfer or relinquishment, the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (iaa) the Airframe to normal interchange agreements agreements, or (iibb) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;purchased
Appears in 1 contract
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except provided, that so long as such action shall not deprive the Mortgagee of the perfected Lien of this Agreement on the Airframe or any Engine, the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04the terms hereof, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i), provided that the Owner’s title to such Engine and the first priority Lien of this Trust Indenture shall not be divested or impaired as a result thereof;
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner shall comply with Section 4.04(e) hereof in respect thereof; the Mortgagee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Owner with such Section 4.04(e);
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner Owner, or such Permitted Lessee, shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) To the extent permitted by Section 4.04(c) hereof, subject any appliances, Parts or other equipment owned by the Owner and removed from the Airframe or any Engine to any pooling arrangement referred to in Section 4.04(c) hereof;
(viii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viiiix) So Subject to the provisions of the immediately following paragraph and so long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to with any Permitted Air Carrier that is not then the subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air CarrierCarrier which is not a U.S. person, (A) on the date of such lease the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (vu) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (wv) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (xw) Mortgagee's ’s Lien in respect of, of the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (x) there exist no possessory rights in favor of the Lessee under such lease under the laws of such Lessee’s country of domicile that would, upon bankruptcy or insolvency of the Owner or other Event of Default and assuming at such time such Lessee is not insolvent or bankrupt, prevent the return or repossession of the Aircraft in accordance with the terms of this Trust Indenture, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;law (subject to customary exceptions); provided that (1) the rights of any Permitted Lessee or other transferee who receives possession by reason of a transfer permitted by this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to, and any lease permitted by this paragraph (b) shall be expressly subject and subordinate to, all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect, (3) the Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required pursuant to Section 4.06 remains in effect and (4) Owner shall ensure that no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall permit any action not permitted to the Owner hereunder. Any lease permitted by this Section 4.02(b) shall expressly prohibit any further sublease by the lessee. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. The Owner shall promptly, but not later than 10 Business Days after entering into such lease, notify the Mortgagee and the Rating Agencies of the existence of such lease with a term in excess of one year and provide a copy of such lease to the Mortgagee and the Rating Agencies. No pooling agreement, Permitted Lease or other relinquishment of possession of the Airframe or any Engine shall in any way discharge or diminish any of Owner’s obligations to the Mortgagee under this Trust Indenture or constitute a waiver of Mortgagee’s rights or remedies hereunder. The Mortgagee agrees, and each Note Holder by acceptance of an Equipment Note agrees, and each Related Note Holder by acceptance of a Related Equipment Note agrees, for the benefit of Owner (and any Permitted Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine) owned by Owner (or any Permitted Lessee), any lessor of any engine (other than an Engine) leased to Owner (or any Permitted Lessee) and any conditional vendor of any engine (other than an Engine) purchased by Owner (or any Permitted Lessee) subject to a conditional sale agreement or any other security agreement, that no interest shall be created under this Trust Indenture in any engine so owned, leased or purchased and that neither the Mortgagee, the Note Holders, the Related Note Holders nor their successors or assigns will acquire or claim, as against Owner (or any Permitted Lessee) or any such mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine as the result of such engine being installed on the Airframe; provided, however, that such agreement of the Mortgagee and Note Holders shall not be for the benefit of any lessor or secured party of an airframe leased to Owner (or any Permitted Lessee) or purchased by Owner (or any Permitted Lessee) subject to a conditional sale or other security agreement or for the benefit of any mortgagee or any other holder of a security interest in an airframe owned by Owner (or any Permitted Lessee), on which airframe Owner (or any Permitted Lessee) then proposes to install an Engine, unless such lessor, conditional vendor, other secured party or mortgagee has expressly agreed (which agreement may be contained in such lease, conditional sale or other security agreement or mortgage) that neither it nor its successors or assigns will acquire, as against Mortgagee, any right, title or interest in an Engine as a result of such Engine being installed on such airframe. Any Wet Lease or similar arrangement under which Owner maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 4.02. The Mortgagee acknowledges that any consolidation or merger of Owner or conveyance, transfer or lease of all or substantially all of Owner’s assets permitted by the Operative Documents shall not be prohibited by this Section 4.02.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Jetblue Airways Corp)
Possession. The Owner(i) Lease, Assignment and Transfer. LESSEE WILL NOT ASSIGN THIS LEASE OR ANY RIGHTS OR OBLIGATIONS HEREUNDER OR INTEREST HEREIN (EXCEPT AS PROVIDED IN SECTION 8(e) BELOW) OR SUBLEASE, WET LEASE OR OTHERWISE IN ANY MANNER TRANSFER, DELIVER OR RELINQUISH POSSESSION OR USE OF THE AIRCRAFT, AIRFRAME OR ANY ENGINE OR INSTALL ANY ENGINE OR PERMIT ANY ENGINE TO BE INSTALLED ON ANY AIRFRAME OTHER THAN THE AIRFRAME; provided, that, so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom and so long as the action to be taken shall not adversely affect Lessor's title to or other interest in, or the Lien of the Indenture on, the Aircraft, the Airframe or either of the Engines or this Lease or the insurance required to be maintained hereunder and Lessee is otherwise in full compliance with Section 12, and so long as all necessary approvals of the FAA and any other Governmental Entity having jurisdiction have been obtained, then Lessee, without the prior written consent of MortgageeLessor, may, only to the extent provided below and subject to the limitations of Sections 6(a)(ii) and 6(a)(iii) below:
(1) subject any Engine to a normal interchange, maintenance, servicing or pooling agreement or similar arrangement with a Permitted Sublessee, in each case customary in the airline industry of which Lessee is a part and entered into in the ordinary course of its business; provided that no transfer of the registration of any Engine shall not lease or otherwise be effected in any manner deliver, transfer or relinquish connection
(2) deliver possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof thereof, or in accordance with the Maintenance Program to any third-party maintenance provider an FAA certified repair station, for testing, service, storage, repair, maintenance maintenance, inspection or overhaul work on the such Aircraft, Airframe, any Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the such Aircraft, Airframe or any Engine to the extent required or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)Section 9 hereof;
(iii3) Install transfer possession of the Aircraft or permit the Airframe to the United States of America or any Permitted instrumentality or agency thereof pursuant to a sublease;
(i) subject the Airframe to the Civil Reserve Air Fleet Program and transfer possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program, so long as Lessee shall promptly notify Lessor upon transferring possession of the Airframe or any Engine to the United States Government pursuant to the Civil Reserve Air Fleet Program and provide Lessor with the name and address of the Contracting Office Representative for the Military Airlift Command of the United States Air Force to whom notices must be given; or
(ii) subject the Airframe to (a) a service contract with the United States Government, a copy of which shall be provided to Lessor, providing for possession to be held by the United States Government for a period not extending beyond the end of the Term, or (b) a requisition for use by the United States Government not constituting an Event of Loss;
(5) install an Engine on an airframe (other than the Airframe) owned by Owner or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);all
(iv6) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if security agreement; provided that: (xA) such airframe is free and clear of all Liens, Liens except (A) the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe and (B) except Liens of the type permitted by clause clauses (iiiA) above and (yB) Owner of Section 6(a)(i)(5) and the Lien of any mortgage which provides that each Engine leased to Lessee hereby shall not become subject to the lien thereof or Permitted to any rights of any party thereunder other than Lessee (with respect to Lessee's rights expressly granted hereunder), as notwithstanding the case may beinstallation of such Engine on any airframe subject to the Lien of such mortgage, unless and until Lessee shall become the owner of such Engine and Lessor shall have received from no further interest therein, all pursuant to the lessor, mortgagee, secured party or conditional seller, express terms of this Lease; and (B) there shall be in respect of such airframe, effect a written agreement of the lessor or secured party of such airframe (which may be a copy of contained in the lease, mortgage, security agreement, lease or conditional sale or other security agreement covering such airframe), ) substantially similar in effect to the agreement of Lessor in Section 6(b) below whereby such Person lessor or secured party effectively and expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien this Lease or is owned by Lessor, and a copy of this Trust Indenturesuch agreement shall be provided to Lessor upon written request;
(v7) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iiiSection 6(a)(i)(5) or (ivSection 6(a)(i)(6) above is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner Lessee shall comply with Section 4.04(e) hereof in respect thereof;with
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter 8) enter into a charter or Wet Lease or other similar arrangement with respect to for the Aircraft or the Airframe and engines installed thereon in the ordinary course of Lessee's business for a period not extending beyond the Term; provided that if Lessee (or any other aircraft on which Permitted Sublessee) shall enter into any Engine may Wet Lease for a period of more than one year (including renewal options) Lessee shall provide to Lessor written notice of such Wet Lease (such notice to be installed (which shall not be considered a transfer of possession hereundergiven prior to entering into such Wet Lease, if practicable, but in any event promptly after entering into such Wet Lease); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;or
(viii9) So long as no Event of Default shall have occurred and be continuing, and subject to sublease the provisions of Aircraft or the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect Sublessee on the Closing Dateterms and conditions set forth in Section 6(a)(iii) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;below.
Appears in 1 contract
Samples: Aircraft Lease Agreement (America West Airlines Inc)
Possession. The Owner, without Without the prior written consent of MortgageeLoan Trustee, Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided that Company (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject (or permit any Permitted Lessee to subject) the Airframe or any Engine to the CRAF Program or transfer (or permit any Permitted Lessee to transfer) possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that Company (or any Permitted Lessee) (A) shall promptly notify Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as the case may be, shall have received either: (1) Company has obtained from the lessor, mortgagee, lessor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to Loan Trustee (an agreement from such lessor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to Loan Trustee), whereby such Person lessor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee), leased to Owner Company (or such any Permitted Lessee, ) or purchased by Owner Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation adversely affects Loan Trustee’s security interest in such Engine, Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Company with Section 7.05(b);
(viviii) Transfer lease any Engine or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; provided that no Event of Default exists at the time such lease is entered into; and
(ix) lease any Engine or the Airframe and Engines to (A) any foreign air carrier other than those set forth in clause (B), (B) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (C) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) and (D) any foreign air carrier consented to in writing by Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (v) no Event of Default exists at the time such lease is entered into, (w) in the case of a lease to a foreign air carrier under clause (A) above, Loan Trustee receives at the time of such lease (1) written confirmation from each of the Applicable Rating Agencies that such lease would not result in a reduction of the rating for any class of Pass Through Certificates below the then current rating for such class of Pass Through Certificates then rated by such Applicable Rating Agency or a withdrawal or suspension of the rating of any class of Pass Through Certificates and (2) an opinion of counsel to Company (such counsel to be reasonably satisfactory to Loan Trustee) to the U.S. Governmenteffect that there exist no possessory rights in favor of the lessee under the laws of such lessee’s country which would, in which event Owner shall promptly notify Mortgagee in writing upon bankruptcy or insolvency of or other default by Company and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of Section 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, (x) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains normal diplomatic relations with the country in which such foreign air carrier is based at the time such lease is entered into and in the case of a lease to a foreign air carrier principally based in Taiwan, the United States maintains diplomatic relations with Taiwan at least as good as those on the Closing Date, (y) in the case of a lease to any foreign air carrier, Company furnishes Loan Trustee with a certificate from a Responsible Officer of Company certifying that there exist no possessory rights in favor of such lessee under the laws of such lessee’s country which would, upon bankruptcy or insolvency of or other default by Company, and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession andof any such Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of Section 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture is enforceable to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and (c) or (y) permit any action not permitted to be taken by Company with respect to the Aircraft hereunder. Company shall promptly notify Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. Loan Trustee, each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note agrees, for the benefit of Company (and any Permitted Lessee) and for the benefit of the lessor or secured party of any airframe or engine leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that Loan Trustee, Noteholders and Related Noteholders will not acquire or claim, as against Company (or any Permitted Lessee) or such lessor or secured party, any right, title or interest in: (A) any engine or engines owned by Company (or any Permitted Air Carrier Lessee) or by the lessor under applicable law;such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe, or (B) any airframe owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of any Engine being installed on such airframe. Loan Trustee acknowledges that any “wet lease” or other similar arrangement under which Company (or any Permitted Lessee) maintains operational control of the Aircraft does not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 1 contract
Samples: Indenture and Security Agreement (Delta Air Lines Inc /De/)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);; TRUST INDENTURE 22-1 (A and B) 27
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such TRUST INDENTURE 22-1 (A and B) 28 jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. TRUST INDENTURE 22-1 (A and B) 29 Mortgagee hereby agrees, and each Note Holder and Related Note Holder by acceptance of an Equipment Note and a Related Equipment Note, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and Related Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Samples: Note Purchase Agreement (Sun Country Airlines Holdings, Inc.)
Possession. The OwnerBorrower shall not, without the Mortgagee’s prior consent of Mortgageewritten consent, shall not lease or otherwise in any manner deliver, transfer transfer, or relinquish possession of the Aircraft, the Airframe Airframe, or any Engine Engine, or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner Borrower may, without such prior written consent of Mortgageeconsent:
(i1) Subject subject or permit any Permitted Lessee to subject (iaa) the Airframe to normal interchange agreements or (iibb) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Borrower or such Permitted Lessee, as the case may be, Lessee in the ordinary course of business; PROVIDED, HOWEVERprovided, that if Owner's Borrower’s title to any such Airframe or Engine is divested under any such agreement or arrangement, then such Airframe or Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner Borrower shall comply with Section 4.04(e4.4(e) in respect thereof;
(ii2) Deliver deliver or permit any Permitted Lessee to deliver possession of the Aircraft, the Airframe, any Engine Engine, or any Part (xaa) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance maintenance, or overhaul work on the Aircraft, the Airframe, any Engine Engine, or any Part, or, to the extent required or permitted by Section 4.044.4, for alterations or modifications in or additions to the Aircraft, Airframe the Airframe, or any Engine Engine, or (ybb) to any Person for the purpose of transport to a Person referred to in the preceding clause (xaa);
(iii3) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Borrower or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, except (xaa) Permitted Liens and those that do not apply to the Engines, and (ybb) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i4.2(b)(1);
(iv4) Install install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Borrower or such Permitted Lessee, or purchased or owned by Owner Borrower or such Permitted Lessee subject to a mortgage, security agreement, conditional sale sale, or other secured financing arrangement, but only if (xaa) such airframe is free and clear of all Liens, except (Ai) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe airframe, and (Bii) Liens of the type permitted by clause (iii3) above of this Section 4.2(b), and (ybb) Owner Borrower or Permitted Lessee, as the case may be, shall have Lessee has received from the lessor, mortgageesecured party, secured party or conditional seller, seller in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title title, or interest in, or Lien on, such Engine by reason of the installation of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v5) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner Borrower or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii3) or nor clause (iv4) above is applicableof this Section 4.2(b) applies; PROVIDED, HOWEVERprovided, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Borrower shall comply with Section 4.04(e4.4(e) hereof in respect thereof;
(vi6) Transfer transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe the Airframe, or any Engine to the (aa) a U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of Government Entity pursuant to CRAF or (bb) to any such transfer of possession and, other Government Entity in the case country of any transfer pursuant to CRAFregistry whose obligations are supported by the full faith and credit of such country when required by applicable Law. Neither such event shall, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command avoidance of the United States Air Force doubt, be deemed to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAFan Event of Loss;
(vii7) Enter enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's provided, that Borrower’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangementLease;
(viii) So long as 8) if no Special Default or Event of Default shall have occurred and be continuingexists, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe the Airframe, or any Engine to (aa) any Permitted Air Carrier that or Permitted Manufacturer who, in either case, is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution dissolution, or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver receiver, or similar personPerson; PROVIDED THATbut only if, in the case only of a lease to a Permitted Foreign Air CarrierCarrier or a Non-U.S. domiciled Permitted Manufacturer, (A) the United States maintains diplomatic relations with Borrower furnishes Mortgagee a favorable opinion, in form and substance reasonably satisfactory to Mortgagee, of counsel selected by Borrower and reasonably satisfactory to Mortgagee located in the country of domicile of such Permitted Foreign Air Carrier or Permitted Manufacturer, that there are no possessory rights in favor of Borrower, any Permitted Lessee, or any third party (orincluding any Government Entity) which would, upon bankruptcy or other default by Borrower (assuming that the Permitted Lessee is not itself the subject of any bankruptcy proceedings), prevent or unreasonably delay the return of the Aircraft to Borrower in accordance with and when permitted by the case terms of Taiwan, diplomatic relations at least as good as those in effect on the Closing Datethis Mortgage upon Mortgagee’s exercise of its remedies hereunder; (bb) and any Affiliate of Borrower that is a U.S. Air Carrier; or (Bcc) Owner shall have furnished Mortgagee a favorable opinion U.S. Government Entity or a Government Entity of counsel, reasonably satisfactory to Mortgagee, in the country of domicile registration of such Permitted Foreign Air Carrierthe Aircraft; provided, that (v1) the terms rights of such lease are the legalany transferee who receives possession by reason of a transfer permitted by this Section 4.2(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to this Mortgage and to Mortgagee’s rights, valid powers and binding obligations of the parties thereto enforceable under the laws of such jurisdictionremedies hereunder, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, including (x) Mortgagee's Lien in respect of, ’s right to repossess the Aircraft, Airframe and Engines will be recognized in such jurisdictionAircraft pursuant to Section 5.2, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title Mortgagee’s right to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to terminate and avoid such lease) , delivery, transfer or relinquishment of possession if an Event of Default exists, and (z) the agreement right to require such Person to deliver the Aircraft, the Airframe, and Engines subject to such transfer forthwith if an Event of Default exists, (2) Borrower shall remain primarily liable for the performance of this Mortgage and all the terms and conditions of this Mortgage and the other Operative Agreements shall remain in effect, (3) no lease or transfer of possession otherwise in compliance with this Section 4.2(b) shall (aa) result in any registration or re-registration of an Aircraft (except to the extent permitted by Section 4.2(e)) or the maintenance, operation, or use thereof except in compliance with Sections 4.2(c) and 4.2(d), or (bb) permit any action not permitted to Borrower hereunder and (4) Borrower shall notify Lenders promptly following entring into any Lease permitted by this Section 4.2(b). In the case of any lease permitted under this Section 4.2(b), Borrower will include in such Permitted Air Carrier that its rights under the lease are appropriate provisions which (x) make such lease expressly subject and subordinate to this Mortgage, including Mortgagee’s right to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (y) require the Permitted Lessee to comply with Section 4.6, to the extent that Borrower does not obligate itself therein to do so; and (z) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to Borrower’s possession and use provided in this Mortgage and provide for the maintenance and inspection of the Aircraft in the same manner in all material respects as the terms applicable provisions of this Trust Indenture Mortgage. No Permitted Lessee may sublease the Airframe or any Engine, except that a Permitted Manufacturer or Affiliate of Borrower that is enforceable a Permitted Lessee may sublease to any Permitted Lessee to whom a lease would be permitted under this Section 4.2; provided that (A) such sublease shall not permit any sub-subleasing of the Aircraft, the Airframe, or any Engine (and Borrower shall ensure that the same does not occur), (B) such sublease shall be assigned to Borrower to secure such Permitted Manufacturer’s obligations under its lease, and (C) Borrower shall comply, and shall cause such sublease to comply, with all requirements of this Section 4.2 as if such sublease were a direct lease from Borrower to the sublessee. Borrower shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses (including reasonable fees and disbursements of counsel) incurred in connection with any such lease. Except as otherwise provided herein and without in any way relieving Borrower from its primary obligation for the performance of its obligations under this Mortgage, Borrower may in its sole discretion permit a lessee to exercise any or all rights which Borrower would be entitled to exercise under Section 4.2 and Section 4.4, and may cause a lessee to perform any or all of Borrower’s obligations under Article 4, and Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by Borrower. Mortgagee hereby agrees, and each Lender by acceptance of an Equipment Note agrees, for the benefit of each lessor, conditional seller, or secured party of any engine leased, purchased, or owned by Borrower or any Permitted Lessee subject to a lease, conditional sale, or other security agreement that Mortgagee, each Lender, and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, or secured party, any right, title, or interest in any engine (other than an Engine) as the result of the installation of such engine on the Airframe at any time while such engine is subject to such lease, conditional sale, or other security agreement and owned by such lessor or conditional seller or subject to a security interest in favor of such secured party; provided, Borrower or any Permitted Air Carrier under applicable law;Lessee has received from any such lessor, secured party, or conditional seller in respect of any airframe leased, purchased or owned by Borrower or any Permitted Lessee, a written agreement (which may be a copy of the lease, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title, or interest in an Engine by reason of the installation of such Engine on any such airframe at any time while such Engine is subject to the Lien of this Mortgage. As security for Borrower’s due and punctual payment and performance of all of its covenants and obligations in the Operative Agreements, Borrower hereby grants to Mortgagee a security interest in all of Borrower’s right, title, and interest in and to each Permitted Lease (and any related permitted sublease) having a term in excess of one year of any Aircraft, Airframe, or Engine, and all payments, including payments of rent, insurance proceeds (other than public liability insurance proceeds), and other amounts due or to become due thereunder. Borrower shall enter into a “Lease Assignment” in form and substance satisfactory to Mortgagee with respect to each Permitted Lease of the Airframe having a term of one or more years.
Appears in 1 contract
Possession. 6.1.1 The OwnerAircraft and the operations performed therewith, without subject to applicable law, the prior consent rules and regulations of Mortgageethe Aeronautics Authority and the provisions hereof and of the other Relevant Documents, shall be under the exclusive control of Lessee until the Aircraft is returned pursuant to Clause 14. Lessee shall not lease or otherwise in any manner without Lessor’s prior written consent deliver, relinquish or transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Enginethe APU, or permit any Engine to part of any of the foregoing, except for a transfer of possession and/or replacement of Parts as provided in Clause 8; provided, however, that, so long as no Default or Event of Default shall have occurred and be installedcontinuing, on any airframe other than the Airframe; except that the Owner Lessee may, without such prior written consent subject to the other provisions of Mortgagee:
this Clause 6: (ia) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine Aircraft or any Part (x) part thereof to the manufacturer thereof or to any third-party maintenance provider Authorized Maintenance Performer for testing, service, repair, maintenance or overhaul work on required by the Aircraftterms hereof, Airframeor for modifications, any Engine alterations or any Part, or, to the extent required or additions permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine provisions hereof; or (yb) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine or the APU on an another airframe owned by Owner or such Permitted Lessee, of the same type and model as the case may beAirframe, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange which other airframe is owned or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted by Lessee, or hired or bailed or conditionally purchased by Owner or such Permitted Lessee subject to a mortgage, security hire purchase or conditional sale agreement, conditional sale or other secured financing arrangement, but only if provided that (xi) such airframe is free and clear of all Liens, Liens except (A) the rights right of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, hire purchase or conditional sale agreement or other security agreement covering such airframe), whereby (ii) the owner of such Person airframe expressly agrees in the lease, hire purchase or conditional sale agreement and the holder of any Lien on such airframe expressly agrees in the security agreement that it will not acquire or claim any right, title or interest in, in any Engine or Lien on, such Engine the APU by reason of such Engine or the APU being installed on such airframe at any time while and (iii) no such other airframe on which an Engine or the APU is installed by virtue of this Clause 6.1 may be subleased to any other entity. No agreement or arrangement described in (b) above shall contemplate or require the transfer of title to any Engine or the APU. The rights of any person who receives possession by reason of a transfer permitted by this Clause 6.1 shall be subject and subordinate to all the terms of this Lease, any Superior Lease, any Financing Documents, and any Mortgage (including, without limitation, the restrictions on the use of the Aircraft contained in Clause 6.3 and Lessor’s right to terminate the Term upon the occurrence of an Event of Default which is continuing and to obtain possession of the Aircraft and each part thereof without regard to any such agreement and the rights of any person thereunder), and Lessee shall remain primarily liable hereunder for the performance of all of the terms hereof to the same extent as if such transfer had not occurred. Any transfer of any part of the Aircraft pursuant to this Clause 6.1 which results in a transfer of title to such part shall be an Event of Default. If Lessee installs any Engine or the APU on another airframe pursuant to this Clause 6.1, Lessor may, at any time after a Default shall have occurred which is continuing, by notice in writing require Lessee to remove such Engine is subject or APU from such airframe and reinstall it on the Airframe, and Lessee shall forthwith comply with any such notice at Lessee’s expense.
6.1.2 Lessor agrees and undertakes to and for the Lien benefit of this Trust Indenture;Lessee, any permitted sub-lessee, owner, lessor or secured party (each a “Third Party Interest Holder”) of any engine (excluding the Engines) (each a “Third Party Engine”):
(va) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner Lessee or such Permitted Lessee, or any permitted sub-lessee; or
(b) purchased by Owner Lessee or such Permitted Lessee any permitted sub-lessee or subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVERin favour of such Third Party Interest Holder, that none of Lessor, Owner, Beneficiary, any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe Financier or any person claiming by or through Lessor, Owner, Beneficiary or any Financier will acquire or claim, as against such Third Party Interest Holder, any right, title or interest in any Third Party Engine to as a result of such Third Party Engine being installed on the U.S. Government, in which event Owner Aircraft during the Term; provided however that the foregoing agreement and undertaking of Lessor shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives only be for the Military Airlift Command benefit of each Third Party Interest Holder who has given an equivalent undertaking, mutatis mutandis, for the United States Air Force to whom notices must be given benefit of Lessor, Owner, Beneficiary and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement Financiers with respect to the Aircraft Engines while they are installed on another airframe in or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of which such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;Third Party Interest Holder has an interest.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Controladora Vuela Compania De Aviacion, S.A.B. De C.V.)
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Security Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the such Aircraft, the such Airframe or any such Engine or install any such Engine, or permit any such Engine to be installed, on any airframe other than the another Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Security Agent:
(i) Subject or permit any Permitted Lessee to subject (i) the such Airframe to normal interchange agreements or (ii) subject any such Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to such Airframe and (B) if Owner's the Company’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine such Airframe or any Part (x) to the manufacturer thereof or such Engine to any third-party maintenance provider Person for testing, service, repair, maintenance or reconditioning, restoration, storage, maintenance, overhaul work on the Aircraftor other similar purposes or for alterations, Airframe, any Engine modifications or additions to such Airframe or any Part, or, such Engine to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of such Airframe or any Permitted Lessee such Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject such Airframe or any such Engine to the CRAF Program or transfer possession of such Airframe or any such Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided, that the Company (A) shall promptly notify the Security Agent upon transferring possession of such Airframe or any such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Security Agent of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an any such Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to such airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install any such Engine on an airframe leased, purchased or owned by the Company (or any Permitted Lessee) subject to a lease, conditional sale and/or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or any conditional sale or security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Security Agent (it being understood that an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Security Agent), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, in any such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureAircraft Security Agreement or (2) such lease, conditional sale or other security agreement provides that any such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Aircraft Security Agreement, notwithstanding the installation thereof on such airframe;
(vvii) Install or permit install any Permitted Lessee to install an such Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of , if such installation shall adversely affect the Aircraft, Airframe or any Engine to the U.S. Government, Security Agent’s security interest in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession andEngine, in the case of Security Agent not intending hereby to waive any transfer pursuant right or interest it may have to CRAF, or in such notification shall identify Engine under applicable law until compliance by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement Company with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunderSection 7.05(b); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So lease any such Engine or such Airframe and any such Engine to any United States air carrier as to which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. §§41101-41112) or successor provision that gives like authority, or to any manufacturer of airframes or engines (or an Affiliate thereof acting under an unconditional guarantee of such manufacturer), so long as such manufacturer and, if applicable, such Affiliate is domiciled in the United States); provided that no Event of Default shall have occurred exist at the time any such lease is entered into; and
(ix) lease any such Engine or such Airframe and be continuingany such Engine to (A) any foreign air carrier other than those set forth in clause (B), and subject to (B) any foreign air carrier that is at the provisions inception of the immediately following paragraphlease based in and a domiciliary of a country listed in Exhibit B hereto, enter into (C) any foreign manufacturer of airframes or engines (or a foreign Affiliate of a United States or foreign manufacturer of airframes or engines acting under an unconditional guarantee of such manufacturer), so long as such foreign manufacturer or (if applicable) foreign Affiliate is domiciled in a country indicated with an asterisk on Exhibit B hereto, or (D) any foreign air carrier consented to in writing by the Security Agent with the consent of the Trustee; provided that (w) in the case of a lease to, or guarantee by, any entity pursuant to this Section 7.02(a)(ix), (1) other than a foreign carrier principally based in Taiwan, the United States maintains diplomatic relations with respect to the Aircraftcountry in which such entity is based and domiciled at the time such lease is entered into, Airframe or any Engine to any Permitted Air Carrier that (2) no Event of Default exists at the time such lease is entered into and (3) such entity is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, (x) in the case only of a lease to a Permitted Foreign Air Carrier, foreign air carrier under clause (A) above, the United States maintains diplomatic relations with Security Agent receives at the country of domicile time of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable lease an opinion of counsel, counsel to the Company (such counsel to be reasonably satisfactory to Mortgagee, the Security Agent) to the effect that there exist no possessory rights in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations favor of the parties thereto enforceable lessee under the laws of such jurisdictionlessee’s country which would, (w) it upon bankruptcy or insolvency of or other default by the Company and assuming at such time such lessee is not necessary for Mortgagee to register insolvent or qualify to do business in bankrupt, prevent the taking of possession of any such jurisdiction, if not already so registered Engine or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, such Airframe and Engines will be recognized any such Engine by the Security Agent in such jurisdictionaccordance with and when permitted by the terms of Section 4.02 upon the exercise by the Security Agent of its remedies under Section 4.02, and (y) in the Laws case of a lease to any foreign manufacturer or foreign Affiliate under clause (C) above, the re-registration conditions set forth in Section 7.02(e) shall be satisfied notwithstanding anything to the contrary in such clause (C); provided that the rights of any lessee or other transferee who receives possession of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, such Airframe or Engines in the event any such Engine by reason of the requisition a transfer permitted by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;this
Appears in 1 contract
Samples: Aircraft Security Agreement (American Airlines Inc)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Possession. The OwnerBorrower shall not, without the prior consent of Mortgageethe Administrative Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the any Airframe or any Engine Engine, or install any Engine, or permit any Engine to be installed, on any airframe other than the an Airframe; except that the Owner Borrower may, without such prior written consent of Mortgageethe Administrative Agent:
(i) Subject or permit any Permitted Lessee to subject (ix) the any Airframe to normal interchange agreements or and (iiy) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into in writing by Owner the Borrower or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's the Borrower’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner the Borrower shall comply with Section 4.04(e3.05(a) in respect thereof;; Mortgage and Security Agreement
(ii) Deliver or permit any Permitted Lessee to deliver possession of the any Aircraft, Airframe, any Engine or any Part (x) to the manufacturer Manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, any Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.043.04, for alterations or modifications in or additions to the any Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Borrower or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Enginessuch Engine, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i3.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner the Borrower or such Permitted Lessee, or purchased owned by Owner the Borrower or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner the Borrower or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner leased to the Borrower or such Permitted Lessee, leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner the Borrower or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other security agreement secured financing arrangement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Borrower shall comply with Section 4.04(e3.05(a) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, any Airframe or any Engine to the U.S. Government, in which event Owner the Borrower shall promptly notify Mortgagee the Administrative Agent in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft any Airframe or any other aircraft airframe on which any Engine may be installed (which which, in each such case, shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's Borrower’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;; Mortgage and Security Agreement
(viii) So long as no Event of Default or Special Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraphparagraph (and, if applicable, Section 3.02(e)), enter into a lease with respect to the Aircraftany Airframe (and, Airframe if applicable, any Engine associated therewith) or any Engine to any Permitted Air Carrier that (x) is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall (y) does not then have substantially all of its property in the possession of any liquidator, trustee, receiver or similar personperson or to any other Person approved in writing by the Administrative Agent; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air CarrierCarrier or any Manufacturer Lessee not domiciled in the United States, (A) the United States maintains normal diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (oror Manufacturer Lessee, in as the case of Taiwanmay be, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner the Borrower shall have furnished Mortgagee the Administrative Agent a favorable opinion of counsel, reasonably satisfactory to Mortgagee, reputable counsel in the country of domicile of such Permitted Foreign Air CarrierCarrier (subject to customary bankruptcy and equitable remedies exceptions and to other qualifications and exceptions customary in foreign opinions generally), reasonably satisfactory to the Administrative Agent, that (u) there exist no possessory rights in favor of such Permitted Lessee which would, upon the Borrower’s bankruptcy or insolvency or other default hereunder or under the Credit Agreement (assuming that at such time such Permitted Lessee is not subject to a proceeding or final order under applicable bankruptcy, insolvency or reorganization laws of such jurisdiction), prevent the return of such Airframe or any Engine subject to such Permitted Lease to the Administrative Agent in accordance with the terms hereof, (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictioncountry, (w) it is not necessary for Mortgagee any Secured Party to register or qualify to do business in such jurisdictioncountry, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's the Lien created by this Mortgage in respect of, the Aircraft, of such Airframe and Engines any Engine subject to such lease will be recognized as a first priority (subject to Permitted Liens) security interest (or comparable Lien) and enforceable in such jurisdictioncountry (including the Administrative Agent’s right to repossess the leased Airframe and Engines), (y) the Laws laws of such jurisdiction of domicile country require fair compensation by the government of such jurisdictioncountry, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, such Airframe or Engines any such Engine in the event of the requisition by such government of such title (unless Owner the Borrower shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture Mortgage covering the requisition of title to the Aircraft, such Airframe or Engines any such Engine by the government of such jurisdiction so long as the Aircraft, such Airframe or Engines are any such Engine is subject to such lease) and (z) the agreement of such Permitted Foreign Air Carrier or Manufacturer Lessee, as the case may be, that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture Mortgage is enforceable against such Permitted Foreign Air Carrier under applicable law;, and (C) if any Airframe or the applicable Aircraft on which any such Engine is then installed is registered in the country of domicile of such Permitted Foreign Air Carrier or Manufacturer Lessee, as the case may be, the Borrower shall have furnished to the Administrative Agent assurances reasonably satisfactory to the Administrative Agent to the effect that the country of domicile of such Permitted Foreign Air Carrier or Manufacturer Lessee, as the case may be, would provide substantially equivalent protection (both as a matter of law and practice) for the rights and remedies of mortgagees in similar situations in the case of the occurrence and during the continuance of an Event of Default as provided under the laws of the United States; Mortgage and Security Agreement provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by this Section 3.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Mortgage, (2) the Borrower shall remain primarily liable for the performance of all of the terms of this Mortgage and all the terms and conditions of this Mortgage and the other Loan Documents shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 3.02(b) shall (x) result in any registration or re-registration of the applicable Airframe, except to the extent permitted by Section 3.02(e), or result in the maintenance, operation or use of the applicable Airframe or Engine except in compliance with Sections 3.02(c) and 3.02(d) or (y) permit any action not permitted to the Borrower hereunder. The Borrower shall assign each Permitted Lease with a term in excess of one year (including renewals and extensions) and any Permitted Lease entered into while an Event of Default referred to in Section 7.01(f) or 7.01(g) of the Credit Agreement is continuing to the Administrative Agent as security for the Secured Obligations, which assignment shall be in form and substance reasonably satisfactory to the Administrative Agent and shall provide that so long as no Event of Default shall have occurred and be continuing, all payments made under such Permitted Lease shall be paid to the Borrower and, during any period when an Event of Default shall have occurred and be continuing, shall be paid to the Administrative Agent to be promptly deposited in the Collateral Proceeds Account and held as collateral for the Secured Obligations. If the Permitted Lessee under any such Permitted Lease required to be assigned to the Mortgage pursuant to the preceding sentence is situated in a Contracting State under the Cape Town Treaty at the time the International Interest constituted under such Permitted Lease first arises, the Borrower shall register such International Interest and the assignment thereof to the Administrative Agent on the International Registry. Unless an Event of Default shall have occurred and be continuing, the Borrower shall be entitled to exercise all rights as lessor under any Permitted Lease, including with respect to any amendment thereto or any defaults thereunder. In the case of any lease permitted under this Section 3.02(b), the Borrower will include in such lease appropriate provisions which: (s) make such lease expressly subject and subordinate to all of the terms of this Mortgage, including the rights of the Administrative Agent to avoid such lease in the exercise of its rights to repossession of any Airframe or Engine hereunder; (t) require the Permitted Lessee to comply with the terms of Section 3.06; (u) require that any Airframe or Engine subject thereto be used in accordance with the limitations applicable to the Borrower’s possession and use provided in this Mortgage; and (v) except in the case of a Permitted Lease to a Manufacturer Lessee, prohibit any further sublease, provided that any permitted sublease by any Manufacturer Lessee shall prohibit any further sub-sublease and any such sublease by any Manufacturer Lessee shall only be permitted to the extent the conditions of this Section 3.02(b)(viii) are satisfied with respect thereto. No lease permitted under this Section 3.02(b) shall be entered into unless (w) the Borrower shall provide prior written notice to the Administrative Agent (such notice to be given at least 10 Business Days in advance of entering into such lease); (x) the Borrower shall furnish to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that the insurance required by Section 3.06 remains in effect (subject to such exclusions and exceptions, as is standard for air carriers flying similar airframes and engines, on routes comparable to those flown by the applicable Airframe or Mortgage and Security Agreement Engine); (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the validity and first priority perfected security interest (subject to Permitted Liens) of the Administrative Agent in the Airframe and Engines subject to such lease; and (z) the Borrower shall reimburse the Administrative Agent and the Lenders for all of their respective reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of a single counsel for the Administrative Agent and the Lenders, incurred by such parties in connection with any such lease (and, in the case of an actual conflict of interest where one or more Lenders desire to retain separate counsel, another single firm of counsel for such affected Lenders). Except as otherwise provided herein and without in any way relieving the Borrower from its primary obligation for the performance of its obligations under this Mortgage, the Borrower may in its sole discretion permit a Permitted Lessee to exercise any or all rights which the Borrower would be entitled to exercise under Sections 3.02 and 3.04, and may cause a Permitted Lessee to perform any or all of the Borrower’s obligations under Article IV, and the Administrative Agent agrees to accept actual and full performance thereof by a Permitted Lessee in lieu of performance by the Borrower. The Administrative Agent hereby agrees, and each other Secured Party by its execution of the Credit Agreement or any Assignment and Acceptance agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or owned by, the Borrower or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that the Administrative Agent, each Secured Party and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on any Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Samples: Term Loan Credit and Guaranty Agreement (United Airlines, Inc.)
Possession. The Owner(i) Lease, without Assignment and Transfer. LESSEE WILL NOT ASSIGN THIS LEASE OR ANY RIGHTS OR OBLIGATIONS HEREUNDER OR INTEREST HEREIN (EXCEPT AS PROVIDED IN SECTION 8(e) BELOW) OR SUBLEASE, WET LEASE OR OTHERWISE IN ANY MANNER TRANSFER, DELIVER OR RELINQUISH POSSESSION OR USE OF THE AIRCRAFT, AIRFRAME OR ANY ENGINE OR INSTALL ANY ENGINE OR PERMIT ANY ENGINE TO BE INSTALLED ON ANY AIRFRAME OTHER
(1) subject any Engine to a normal interchange, maintenance, servicing or pooling agreement or similar arrangement with a Permitted Sublessee, in each case customary in the prior consent airline industry of Mortgageewhich Lessee is a part and entered into in the ordinary course of its business; provided that no transfer of the registration of any Engine shall be effected in connection therewith; and provided, further, that (A) no such agreement or arrangement contemplates, results in or requires the transfer of title to any Engine, and (B) if Lessor's or Foreign Lessor's (so long as the Foreign Lease Agreement is in effect) title to any Engine shall be divested under any such agreement or arrangement, such divestiture shall be deemed to be an Event of Loss with respect to such Engine and not lease or otherwise an Event of Default and Lessee shall comply with Section 11(b) hereof in any manner deliver, transfer or relinquish respect thereof;
(2) deliver possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof thereof, or in accordance with the Maintenance Program to any third-party maintenance provider an FAA certified repair station, for testing, service, storage, repair, maintenance maintenance, inspection or overhaul work on the such Aircraft, Airframe, any Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the such Aircraft, Airframe or any Engine to the extent required or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)Section 9 hereof;
(iii3) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Aircraft or the Airframe to the United States of America or any instrumentality or agency thereof pursuant to a sublease;
(i) subject the Airframe to the Civil Reserve Air Fleet Program and transfer possession of the Airframe or any Engine to the U.S. GovernmentUnited States Government pursuant to the Civil Reserve Air Fleet Program, in which event Owner so long as Lessee shall promptly notify Mortgagee in writing Lessor upon transferring possession of the Airframe or any such transfer of possession and, in Engine to the case of any transfer United States Government pursuant to CRAF, in such notification shall identify by name, the Civil Reserve Air Fleet Program and provide Lessor with the name and address and telephone numbers of the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and given; or
(ii) subject the Airframe to whom requests (A) a service contract with the United States Government, a copy of which shall be provided to Lessor, providing for possession to be held by the United States Government for a period not extending beyond the end of the Term, or claims must be made to (B) a requisition for use by the extent applicable under CRAFUnited States Government not constituting an Event of Loss;
(vii5) Enter into a charter or Wet Lease or install an Engine on an airframe (other similar arrangement with respect to than the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer Airframe) owned by Lessee free and clear of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, Liens except (A) Permitted Liens and Liens which apply only to engines (other than the United States maintains diplomatic relations with Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least airframe as good as those in effect on the Closing Datean entirety) and (B) Owner shall have furnished Mortgagee a favorable opinion the rights of counsel, reasonably satisfactory to Mortgagee, participants under normal interchange agreements which are customary in the country of domicile of such Permitted Foreign Air Carrierairline industry and do not contemplate, that (v) permit, result in or require the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss transfer of title to the Aircraft, Airframe airframe or Engines in engines installed thereon;
(6) install an Engine on an airframe leased to Lessee or owned by Lessee subject to a conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except the event rights of the requisition parties to the lease or conditional sale or other security agreement covering such airframe and except Liens of the type permitted by such government clauses (A) and (B) of such title Section 6(a)(i)(5) and the Lien of any mortgage which provides that each Engine leased to Lessee hereby shall not become subject to the Lien thereof or to any rights of any party thereunder other than Lessee (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering Lessee's rights expressly granted hereunder), notwithstanding the requisition installation of title such Engine on any airframe subject to the Aircraft, Airframe or Engines by the government Lien of such jurisdiction so long as the Aircraftmortgage, Airframe unless and until Lessee shall become the
(7) install an Engine on an airframe owned by Lessee, leased to Lessee or Engines are purchased by Lessee subject to a conditional sale or other security agreement under circumstances where neither Section 6(a)(i)(5) or Section 6(a)(i)(6) is applicable; provided that such leaseinstallation shall be deemed an Event of Loss with respect to such Engine and Lessee shall comply with Section 11(b) hereof in respect thereof, Lessor not intending hereby to waive any right or interest it may have to or in such Engine under applicable Law until compliance by Lessee with such Section 11(b);
(8) enter into a Wet Lease for the Aircraft or the Airframe and engines installed thereon in the ordinary course of Lessee's business for a period not extending beyond the Term; provided that if Lessee shall enter into any Wet Lease for a period of more than six months (zincluding renewal options) the agreement Lessee shall provide to Lessor written notice of such Wet Lease (such notice to be given at least ten (10) Business Days prior to entering into such Wet Lease); or
(9) sublease the Aircraft or the Airframe to any Permitted Air Carrier that its rights under the lease are subject and subordinate to all Sublessee on the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;and conditions set forth in Section 6(a)(iii) below.
Appears in 1 contract
Samples: Aircraft Lease Agreement (America West Airlines Inc)
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Collateral Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraftany Airframe, the Airframe or any Engine or Part, install any Engine, or permit any Engine to be installed, on installed in any airframe other than the AirframeAirframes or enter into any Wet Lease; except PROVIDED that so long as no Default of the Owner type referred to in Sections 8.01 or 8.05 of the Credit Agreement or Event of Default shall have occurred and be continuing at the time of such lease, delivery, transfer or relinquishment of possession or installation or such Wet Lease, so long as the action to be taken shall not deprive the Collateral Agent of the first priority Lien (subject to Permitted Liens) of this Mortgage on the Collateral and so long as the Company (or any Lessee) shall comply with the provisions of Sections 3.2(c) and 3.6 hereof, the Company may, without such the prior written consent of Mortgageethe Collateral Agent:
(i) Subject subject any Airframe or permit any Permitted Lessee to subject (i) the Engine or engines installed on an Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements pooling or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company (or such Permitted any Lessee, as the case may be, ) in the ordinary course of its business; PROVIDEDPROVIDED that (A) no such agreement or arrangement contemplates or requires the transfer of title to any Airframe, HOWEVER, that (B) if Ownerthe Company's title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of with respect to such Engine and the date of such divestiture, and Owner Company shall (or shall cause Lessee to) comply with Section 4.04(e3.4(e) hereof in respect thereof, and (C) any interchange agreement to which the Airframes may be subject shall be with a U.S. Air Carrier or a Foreign Air Carrier;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or Engine or any Part (x) to the manufacturer thereof (or for delivery thereto) or to any third-party maintenance provider organization (or for delivery thereto) for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any such Airframe or Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, such Airframe or any Engine to the extent required or (ypermitted by the terms of Section 3.4(d) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)hereof;
(iii) Install or permit install any Permitted Lessee to install an Engine on an airframe which is owned by Owner the Company (or such Permitted any Lessee, as the case may be, ) free and clear of all Liens, except except: (xA) Permitted Liens and those that do not which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (yother than Parts) installed on such airframe (but not to the airframe as an entirety), (B) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that which would be permitted under Section 4.02(b)(iclause (i) above PROVIDED that the Company's title to any such Engine and the first priority Lien of this Mortgage shall not be divested or impaired as a result thereof and (C) mortgage liens or other security interests, PROVIDED that (as regards this subclause (C)) such mortgage liens or other security interests effectively provide that such Engine shall not become subject to such mortgage or security interest, notwithstanding the installation thereof on such airframe;
(iv) Install or permit install any Permitted Lessee to install an Engine on an airframe which is leased to Owner the Company (or such Permitted any Lessee, ) or purchased by Owner the Company (or such Permitted Lessee any Lessee) subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if PROVIDED that (x) such airframe is free and clear of all Liens, except except: (A) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir assignees, covering such airframe and (B) Liens of the type permitted by clause (iii) above of this Section 3.2(a) and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), whereby such Person agrees effectively provides that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is shall not become subject to the Lien lien of this Trust Indenturesuch lease, conditional sale or other security agreement, notwithstanding the installation thereof on such airframe;
(v) Install or permit install any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such Permitted any Lessee), leased to Owner the Company (or such Permitted any Lessee, ) or purchased by Owner the Company (or such Permitted Lessee any Lessee) which is subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or nor clause (iv) above of this Section 3.2(a) is applicable; PROVIDED, HOWEVER, PROVIDED that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner that the Company shall (or shall cause any Lessee to) comply with Section 4.04(e3.4(e) hereof in respect thereof, the Collateral Agent not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Company with such Section 3.4(e);
(vi) Transfer to the extent permitted by Section 3.4(c) hereof, subject any appliances, Parts or other equipment owned by the Company and removed from any Airframe or Engine to any pooling arrangement referred to in such Section;
(vii) subject (or permit any Permitted Lessee to transfer possession of the Aircraft, subject) any Airframe or any Engine to the U.S. GovernmentCivil Reserve Air Fleet Program and transfer (or permit any Lessee to transfer) possession of any Airframe or Engine to the United States of America or any instrumentality or agency thereof pursuant to the Civil Reserve Air Fleet Program, in which event Owner so long as the Company (or any Lessee) shall (A) promptly notify Mortgagee the Collateral Agent upon subjecting such Airframe or Engine to the Civil Reserve Air Fleet Program in writing any contract year and provide the Collateral Agent with the name and address of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Air Mobility Command of the United States Air Force to whom notices notice must be given pursuant to Section 4.2 hereof, and to whom requests (B) promptly notify the Collateral Agent upon transferring possession of the Airframe or claims must be made any Engine to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft United States of America or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any agency or instrumentality thereof pursuant to such charter or Wet Lease or other similar arrangementprogram;
(viii) So long as no Event enter into a Wet Lease for any Airframe or engines then installed thereon with any third party, PROVIDED that if the Company (or any Lessee) shall enter into any Wet Lease for a period of Default more than one year (including renewal options) the Company shall have occurred and be continuing, and subject provide to the provisions Collateral Agent written notice of such Wet Lease (such notice to be given prior to entering into such Wet Lease, if practicable, but in any event promptly after entering into such Wet Lease);
(ix) transfer possession of any Airframe or Engine to the immediately following paragraphUnited States of America or any instrumentality or agency thereof pursuant to a contract, a copy of which shall be provided to the Collateral Agent; or
(x) the Company may, at any time, enter into a any lease with respect to the Aircraft, of any Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of with (A) a lease to a Permitted Foreign U.S. Air Carrier, (B) any Person approved in writing by the Collateral Agent (with the approval of the Required Banks), (C) any Permitted Lessee; or (D) any airline alliance partner of the Company that otherwise meets the requirement of (A), (B) or (C) above or has been previously approved in writing by the Collateral Agent, in any such case, if (1) the lessee under such lease is not subject to a proceeding or final order under applicable bankruptcy, insolvency or reorganization laws on the date such lease is entered into, (2) in the event that the lessee under such lease is a Foreign Air Carrier (other than a Foreign Air Carrier principally based in Taiwan), the United States maintains diplomatic relations with the country of domicile of in which such Permitted Foreign Air Carrier is principally based at the time such lease is entered into (or, in the case of a lease to a lessee principally based in Taiwan, maintains diplomatic relations at least as good as those in effect on the Closing Effective Date) and (B3) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of event that the lessee under such Permitted lease is a Foreign Air Carrier, the Collateral Agent shall receive at the time such lease is entered into an opinion of counsel (in form and substance reasonably satisfactory to the Collateral Agent) to the Company to the effect that (vI) the terms of the proposed lease will be legal, valid, binding and (subject to customary exceptions in foreign opinions generally) enforceable against the proposed lessee in the country in which the proposed lessee is principally based, (II) there exist no possessory rights in favor of the lessee under such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionlessee's country of domicile that would, upon bankruptcy or insolvency of or other default by the Company and assuming at such time such lessee is not insolvent or bankrupt, prevent the return or repossession of the Aircraft in accordance with the terms of this Mortgage, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (yIII) the Laws laws of such jurisdiction lessee's country of domicile require fair compensation by the government of such jurisdiction, jurisdiction payable in a currency freely convertible into Dollars, Dollars for the loss of title to use of the Aircraft, Airframe or Engines Aircraft in the event of the requisition by such government of such title use, and (unless Owner shall provide insurance in IV) the amounts required with respect laws of such lessee's country of domicile would give recognition to hull insurance under this Trust Indenture covering the requisition of Company's title to the Aircraft, to the registry of the Aircraft in the name of the Company (or the proposed lessee, as "lessee", as appropriate), and to the Lien of this Mortgage. The rights of any Lessee or other transferee who receives possession by reason of a transfer permitted by this Section 3.2(a) (other than the transfer of an Engine which is deemed an Event of Loss) shall be effectively subject and subordinate to, and any lease permitted by this Section 3.2(a) shall be expressly subject and subordinate to, all the terms of this Mortgage and to the Lien of this Mortgage, including, without limitation, the covenants contained in this Section 3.2 and the Collateral Agent's rights to foreclosure and possession pursuant to Section 4.2 hereof and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance of all of the terms of this Mortgage to the same extent as if such lease or transfer had not occurred, and, except as otherwise provided herein, the terms of any such lease shall not permit any Lessee to take any action not permitted to be taken by the Company in this Mortgage with respect to the Aircraft. No pooling agreement, lease or other relinquishment of possession of any Airframe or Engines Engine, or Wet Lease shall in any way discharge or diminish any of the Company's obligations to the Collateral Agent hereunder or constitute a waiver of the Collateral Agent's rights or remedies hereunder. Any lease permitted under this Section 3.2(a) shall expressly prohibit any further sublease by the government Lessee. The Collateral Agent agrees, for the benefit of the Company (and any Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine) owned by the Company (or any Lessee), any lessor of any engine (other than an Engine) leased to the Company (or any Lessee) and any conditional vendor of any engine (other than an Engine) purchased by the Company (or any Lessee) subject to a conditional sale agreement or any other security agreement, that no interest shall be created hereunder in any engine so owned, leased or purchased and that neither the Collateral Agent nor its successors or assigns will acquire or claim, as against the Company (or any Lessee) or any such mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine as the result of such jurisdiction so long as engine being installed on the AircraftAirframes; PROVIDED, Airframe HOWEVER, that such agreement of the Collateral Agent shall not be for the benefit of any lessor or Engines are secured party of any airframe (other than the Airframes) leased to the Company (or any Lessee) or purchased by the Company (or any Lessee) subject to a conditional sale or other security agreement or for the benefit of any mortgagee of or any other holder of a security interest in an airframe owned by the Company (or any Lessee), unless such lessor, conditional vendor, other secured party or mortgagee has expressly agreed (which agreement may be contained in such lease, conditional sale or other security agreement or mortgage) that neither it nor its successors or assigns will acquire, as against the Collateral Agent, any right, title or interest in an Engine as a result of such Engine being installed on such airframe. The Company shall provide to the Collateral Agent (i) written notice of any lease hereunder (such notice to be given not later than five days prior to entering into such lease) and (zii) the agreement a copy of such Permitted Air Carrier that its rights under the each lease are subject and subordinate to all the terms which has a term of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;more than three months.
Appears in 1 contract
Samples: Aircraft Mortgage and Security Agreement (Northwest Airlines Corp)
Possession. The Owner, without Without the prior written consent of MortgageeLoan Trustee, Company shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; provided that Company (or, except that with respect to clauses (viii) and (ix) below, any Permitted Lessee) may without the Owner may, without such prior written consent of MortgageeLoan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Company (or such any Permitted Lessee, as the case may be, ) in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, restoration, storage, maintenance or overhaul work on other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or any Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject (or permit any Permitted Lessee to subject) the Airframe or any Engine to the CRAF Program or transfer (or permit any Permitted Lessee to transfer) possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that Company (or any Permitted Lessee) (A) shall promptly notify Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement; provided that: (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a); and (yB) Owner or Permitted Lessee, as the case may be, shall have received either: (1) Company has obtained from the lessor, mortgagee, lessor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to Loan Trustee (an agreement from such lessor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) being deemed to be satisfactory to Loan Trustee), whereby such Person lessor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture, or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding its installation on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Company (or such any Permitted Lessee), leased to Owner Company (or such any Permitted Lessee, ) or purchased by Owner Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation adversely affects Loan Trustee’s security interest in such Engine, Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by Company with Section 7.05(b);
(viviii) Transfer lease any Engine or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; provided that no Event of Default exists at the time such lease is entered into; and
(ix) lease any Engine or the Airframe and Engines to (A) any foreign air carrier other than those set forth in clause (B), (B) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto, (C) the manufacturer of the Airframe or any Engine (either directly or through an affiliate) and (D) any foreign air carrier consented to in writing by Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (v) no Event of Default exists at the time such lease is entered into, (w) in the case of a lease to a foreign air carrier under clause (A) above, Loan Trustee receives at the time of such lease (1) written confirmation from each of the Rating Agencies that such lease would not result in a reduction of the rating for any class of Pass Through Certificates below the then current rating for such class of Pass Through Certificates then rated by such Rating Agency or a withdrawal or suspension of the rating of any class of Pass Through Certificates and (2) an opinion of counsel to Company (such counsel to be reasonably satisfactory to Loan Trustee) to the U.S. Governmenteffect that there exist no possessory rights in favor of the lessee under the laws of such lessee’s country which would, in which event Owner shall promptly notify Mortgagee in writing upon bankruptcy or insolvency of or other default by Company and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of Section 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, (x) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains normal diplomatic relations with the country in which such foreign air carrier is based at the time such lease is entered into and in the case of a lease to a foreign air carrier principally based in Taiwan, the United States maintains diplomatic relations with Taiwan at least as good as those on the Closing Date, (y) in the case of a lease to any foreign air carrier, Company furnishes Loan Trustee with a certificate from a Responsible Officer of Company certifying that there exist no possessory rights in favor of such lessee under the laws of such lessee’s country which would, upon bankruptcy or insolvency of or other default by Company, and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession andof any such Engine or the Airframe and any such Engine by Loan Trustee in accordance with and when permitted by the terms of Section 4.02 upon the exercise by Loan Trustee of its remedies under Section 4.02, and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture is enforceable to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and (c) or (y) permit any action not permitted to be taken by Company with respect to the Aircraft hereunder. Company shall promptly notify Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. Loan Trustee, each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note agrees, for the benefit of Company (and any Permitted Lessee) and for the benefit of the lessor or secured party of any airframe or engine leased to Company (or any Permitted Lessee) or purchased or owned by Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that Loan Trustee, Noteholders and Related Noteholders will not acquire or claim, as against Company (or any Permitted Lessee) or such lessor or secured party, any right, title or interest in: (A) any engine or engines owned by Company (or any Permitted Air Carrier Lessee) or by the lessor under applicable law;such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe, or (B) any airframe owned by Company (or any Permitted Lessee) or by the lessor under such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of any Engine being installed on such airframe. Loan Trustee acknowledges that any “wet lease” or other similar arrangement under which Company (or any Permitted Lessee) maintains operational control of the Aircraft does not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 1 contract
Samples: Indenture and Security Agreement (Delta Air Lines Inc /De/)
Possession. The OwnerBorrower will not, without the prior written consent of Mortgageethe Bank, shall which consent will not be unreasonably withheld and for which no fee or other amount (other than as expressly provided for hereunder) will be required, lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or any part thereof or any part of the Borrower's rights hereunder to any Person or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that PROVIDED, HOWEVER, that, so long as no Default or Event of Default shall have occurred and be continuing, and so long as the Owner Borrower shall comply with the provisions of Section 7.1 hereof, the Borrower may, without such the prior written consent of Mortgageethe Bank:
(i1) Subject subject any Engine or permit any Permitted Lessee to subject (i) the Airframe Part to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Borrower in the ordinary course of its business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any PROVIDED no such agreement or arrangement, then arrangement contemplates or requires the transfer of title to such Engine or Part and PROVIDED FURTHER that, if Borrower relinquishes possession of an Engine under such an agreement or arrangement for a continuous period of more than 180 days, an Event of Loss shall be deemed to have suffered an Event of Loss as of the date of such divestiture, occurred with respect thereto and Owner Borrower shall comply with Section 4.04(e) in respect thereof7.2;
(ii2) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof or to overhaul agencies for testing or other similar purposes or to any third-party maintenance provider organization for testing, serviceservices, repair, maintenance or overhaul work on the Aircraft, Airframe, Airframe or any Engine or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Airframe or any Engine to the extent required or permitted by the terms of Section 6.2(c) hereof;
(3) transfer possession of the Aircraft, Airframe or any Engine to the United States government or (y) to any Person for the purpose of transport instrumentality or agency thereof pursuant to a Person referred lease required to be entered into in accordance with applicable laws, rulings, regulations or orders, a copy of which lease shall be furnished to the preceding clause (x)Bank;
(iii4) Install transfer possession of the Aircraft, Airframe or permit any Permitted Lessee Engine to the United States government or any instrumentality or agency thereof when required in accordance with applicable laws, ruling, regulations or order;
(5) install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is Borrower free and clear of all Liens, except (A) those described in clauses (ii) and (iii) of the definition of Permitted Encumbrances, (B) those which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety), and (C) the rights of other United States certificated air carriers under normal interchange or pooling agreements or arrangements which are customary in the airline industry, and which do not contemplate, permit or require the transfer of title to such airframe or the engines installed on such Airframe;
(6) install an Engine on an airframe leased to the Borrower or purchased by the Borrower subject to a conditional sale or other security agreement; PROVIDED, HOWEVER, that (A) such airframe is free and clear of all Liens except the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe which insofar as they relate to such Engine are subordinate to the rights of the Bank hereunder or which expressly and effectively provide that each Engine shall not become subject to the lien thereof as to any rights of any party thereunder other than the Borrower, and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, Borrower shall have received from the lessor, mortgagee, lessor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, lease or conditional sale or other security agreement covering such airframe), a copy of which shall be provided to the Bank, whereby such Person lessor or secured party agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenturethe Security Agreement;
(v7) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lesseethe Borrower, leased to Owner or such Permitted Lessee, the Borrower or purchased by Owner or such Permitted Lessee the Borrower subject to a conditional sale or other security agreement under circumstances where neither clause subsection (iii5) or nor subsection (iv6) above of this Section 6.1(b) is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner the Borrower shall comply with Section 4.04(e) 7.2 hereof with respect to such Event of Loss, the Bank not intending hereby to waive any right or interest it may have to or in respect thereofsuch Engine under applicable law until compliance by the Borrower with said Section 7.2;
(vi) Transfer 8) lease any engine or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe and any Engines or any Engine engines then installed on such Airframe in the ordinary course of business to (A) a United States Certificated Air Carrier (a "PERMITTED AIR CARRIER") not the subject of petition filed under the Federal bankruptcy laws or other insolvency laws now or hereinafter in effect for use by such United States Certificated Permitted Air Carrier on its regularly scheduled or charter routes, or (B) a foreign permitted air carrier (as described in SCHEDULE E hereto (a "FOREIGN PERMITTED AIR CARRIER")) not the subject of a petition filed under bankruptcy or other insolvency laws now or hereafter in effect, for use by such Foreign Permitted Carrier in its regularly scheduled or charter routes; provided, however, that the Bank, upon request, shall receive satisfactory legal opinions to the U.S. Governmenteffect that, in which event Owner shall promptly notify Mortgagee in writing upon such lease, the Bank's rights under the Loan Documents will remain fully perfected; and
(9) enter into a wet lease or charter (whereby the Borrower provides flight crew, maintenance, ground crew, etc. for the benefit of any such transfer of possession and, lessee) in the case ordinary course of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (Borrower's business which shall not be considered a transfer of possession hereunder); PROVIDED THAT , provided that the OwnerBorrower's obligations hereunder under the Loan Documents shall continue in full force and effect notwithstanding any such charter wet lease or Wet Lease or charter; PROVIDED, FURTHER, that the rights of any transferee who receives possession by reason of a transfer permitted by this Section (other similar arrangement;
(viii) So long as no than the transfer of an Engine which is deemed an Event of Default Loss) shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to to, and any lease permitted by this Section shall expressly prohibit any lease of the Airframe or such Engine by the lessee and shall be made expressly subject and subordinate to, all the terms of the Loan Documents, including, without limitation, the covenants contained in this Trust Indenture is enforceable against Section, the Bank's rights to repossession pursuant to the Loan Documents, and Borrower shall remain primarily liable hereunder for the performance of all of the terms hereof to the same extent as if such Permitted Air Carrier under applicable law;transfer or lease had not occurred. No interchange agreement,
Appears in 1 contract
Possession. The OwnerCompany, without the prior consent of Mortgageethe Collateral Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner Company may, without such prior written consent of Mortgageethe Collateral Agent:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or and (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's the Company’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner the Company shall comply with Section 4.04(e3.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the Airframe Manufacturer, the Engine Manufacturer, the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.043.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an any Engine on an airframe owned by Owner the Company or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Enginessuch Engine, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i3.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an any Engine on an airframe leased to Owner the Company or such Permitted Lessee, or purchased owned by Owner the Company or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner the Company or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v) Install or permit any Permitted Lessee to install an any Engine on an airframe owned by Owner leased to the Company or such Permitted Lessee, leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner the Company or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other security agreement secured financing arrangement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e3.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner the Company shall promptly notify Mortgagee the Collateral Agent in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft Aircraft, or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's Company’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that both is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall does not then have substantially all of its property in the possession of any liquidator, trustee, receiver or similar personperson or any other Person approved in writing by the Collateral Agent; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains normal diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner the Company shall have furnished Mortgagee the Collateral Agent and the Lenders a favorable opinion reasonably acceptable to the Collateral Agent (acting upon instruction of counsel, reasonably satisfactory to Mortgagee, the Majority Lenders) of reputable counsel in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (w) it is not necessary for Mortgagee the Collateral Agent or any Lender to register or qualify to do business in such jurisdictioncountry, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's the Collateral Agent’s Lien in respect of, the such Aircraft, Airframe and Engines Engine will be recognized as a first priority (subject to Permitted Liens) security interest and enforceable in such jurisdictionjurisdiction (including the Collateral Agent’s right to repossess the Aircraft), (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the such Aircraft, Airframe or Engines Engine in the event of the requisition by such government of such title (unless Owner the Company shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture Mortgage covering the requisition of title to the such Aircraft, Airframe or Engines Engine by the government of such jurisdiction so long as the such Aircraft, Airframe or Engines are Engine is subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture Mortgage is enforceable against such Permitted Air Carrier under applicable law;law (subject to customary exceptions); provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 3.02(b) (other than by a transfer of any Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Mortgage, (2) the Company shall remain primarily liable for the performance of all of the terms of this Mortgage and all the terms and conditions of this Mortgage and the other Loan Documents shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 3.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 3.02(e), or result in the maintenance, operation or use thereof except in compliance with Sections 3.02(c) and 3.02(d) or (y) permit any action not permitted to the Company hereunder. In the case of any lease permitted under this Section 3.02(b), the Company will include in such lease appropriate provisions which (s) make such lease expressly subject and subordinate to all of the terms of this Mortgage, including the rights of the Collateral Agent to avoid such lease in the exercise of its rights to repossession of the Airframe or any Engine hereunder; (t) require the Permitted Lessee to comply with the terms of Section 3.06; (u) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Company’s possession and use provided in this Mortgage. No lease permitted under this Section 3.02(b) shall be entered into unless (w) the Company shall provide written notice to the Collateral Agent (such notice in the event of a lease to a U.S. Certificated Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) the Company shall furnish to the Collateral Agent evidence reasonably satisfactory to the Collateral Agent that the insurance required by Section 3.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of the Collateral Agent in the Aircraft, Airframe and Engines; and (z) the Company shall reimburse the Agents and the Lenders for all of their respective reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel for the Collateral Agent and of one counsel for all of the Lenders, incurred by them in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Company from its primary obligation for the performance of its obligations under this Mortgage, the Company may in its sole discretion permit a Permitted Lessee to exercise any or all rights which the Company would be entitled to exercise under Sections 3.02 and 3.04, and may cause a Permitted Lessee to perform any or all of the Company’s obligations under Article III, and the Collateral Agent agrees to accept actual and full performance thereof by a Permitted Lessee in lieu of performance by the Company. The Collateral Agent hereby agrees, each other Secured Party by execution of the Loan Agreement or an “Assignment and Assumption” thereunder agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, the Company or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Collateral Agent, each other Secured Party, and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Possession. The OwnerExcept as provided in this SECTION 11 or SECTION 20, Lessee will not, without the prior written consent of MortgageeLessor, shall not lease sublease or otherwise in any manner deliver, transfer or voluntarily relinquish possession, or enter into any contract or arrangement obligating it to deliver, transfer or relinquish possession of the AircraftAirframe, the Airframe or any part thereof, any Engine or Propeller or install any Enginepart of the Airframe, any Engine or Propeller or permit any part of the Airframe, any Engine or Propeller to be installed, on any airframe other than the Airframe; , except as provided in this SECTION 11 or SECTION 20, except that so long as no Default or Event of Default exists, and so long as the Owner action to be taken does not affect Lessor's title to or interest in the Aircraft, Lessee may, without such the prior written consent of MortgageeLessor:
(i) Subject subject any Engine or permit any Permitted Lessee to subject (i) the Airframe Propeller to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case arrangements customary in the commercial airline industry applicable to other similar engines or propellers operated by Lessee and entered into by Owner or such Permitted Lessee, as the case may be, Lessee in the ordinary course of its business; PROVIDED, HOWEVER, that (A) if OwnerLessor's title to any such Engine or Propeller is divested under pursuant to any such agreement or arrangement, then arrangement or (B) if Lessee relinquishes possession of such Engine or Propeller for a continuous period of more than one hundred eighty (180) consecutive days, there shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestiture, Engine or Propeller and Owner Lessee shall comply with Section 4.04(e) SECTION 12.4 in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) component thereof, to the manufacturer thereof or its authorized representatives for testing or other similar purpose or to any third-party maintenance provider organization for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine Aircraft or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe Aircraft to the extent required or any Engine or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)this Lease;
(iii) Install or permit any Permitted Lessee to install an Engine or a Propeller on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted under SECTIONS 10.1 (e), (f) AND (g), (B) the rights of other U.S. Certificated Air Carriers under normal interchange agreements that are customary in the airline industry and entered into by clause (iii) above Lessee in the ordinary course of its business, so long as such agreements do not contemplate, permit or require the transfer of title to such airframe or the engines or the propellers installed thereon and (yC) Owner the Lien of any mortgage which expressly and effectively provides that each Engine or Permitted LesseePropeller shall not become subject to the Lien thereof, as notwithstanding the case may be, shall have received from the lessor, mortgagee, secured party installation thereof on an airframe or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is engine subject to the Lien of such mortgage, unless and until Lessee shall become the owner of such Engine or Propeller free of the interests of Lessor therein under this Trust Indenture;Lease.
(viv) Install or permit any Permitted Lessee to install an Engine or a Propeller on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDagreement, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) such airframe is free and clear of all Liens except the United States maintains diplomatic relations with rights of the country parties to the lease or conditional sale or other security agreement and their purchasers, mortgagees and encumbrancers covering such airframe and except Liens of domicile of such Permitted Foreign Air Carrier the type permitted by clauses (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing DateA) and (B) Owner of subparagraph (iii) of this SECTION 11.2; and (B) such lease, conditional sale or other security agreement expressly and effectively provides that each Engine or Propeller shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory not become subject to Mortgagee, in the country of domicile Lien of such Permitted Foreign Air Carrierlease, that conditional sale or other security agreement, notwithstanding the installation thereof on any airframe subject to the Lien of such lease, conditional sale or other security agreement, unless and until Lessee becomes the owner of such Engine or Propeller free of the interests of Lessor therein under this Lease; or
(v) the terms of such lease are the legal, valid and binding obligations transfer possession of the parties thereto enforceable under Airframe or any Engine or Propeller to the laws United States Government pursuant to a sublease, a copy of which shall be promptly furnished to Lessor, PROVIDED that such jurisdictionsublease (including, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdictionwithout limitation, if not already so registered or qualified, as a result, in whole or in part, any option of the proposed lease, sublessee to renew or extend) shall not extend beyond the end of the Term of the Lease. Notwithstanding anything to the contrary in this SECTION 11.2:
(x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y1) the Laws rights of such jurisdiction any transferee or sublessee who receives possession by reason of domicile require fair compensation a transfer permitted by the government this SECTION 11.2 (other than a transfer of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss an Engine or Propeller which is deemed an Event of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner Loss) are and shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be EXPRESSLY subject and subordinate to all the terms of this Trust Indenture is enforceable Lease during the Term hereof, including without limitation, in each instance, Lessor's rights to repossession pursuant to SECTION 18, and to avoid such transferee's or sublessee's right to possession upon such repossession;
(2) Lessee shall remain primarily liable hereunder for the performance of all the terms of this Lease to the same extent as if such transfer or sublease had not occurred; and
(3) No interchange agreement, sublease or other relinquishment of possession of the Airframe, any Engine or Propeller shall in any way affect the registration of the Aircraft with the FAA, or discharge or diminish any of Lessee's obligations to Lessor or constitute a waiver of any of Lessor's rights and remedies hereunder. If a lease, conditional sale, or other security agreement complies with clause (B) of subparagraph (iv) of this SECTION 11.2, and the lease or conditional sale or other security agreement covering such airframe also covers an engine or engines or propeller or propellers owned by the lessor under such lease or subject to a security interest in favor of such secured party under such conditional sale or other security agreement, Lessor will not acquire or claim, as against such Permitted Air Carrier lessor or secured party, any right, title or interest in any such engine or propeller as the result of such engine or propeller being installed on the Airframe or any propeller being attached to any Engine at any time while such engine or propeller is subject to such lease or conditional sale or other security agreement and owned by such lessor or subject to a security interest in favor of such secured party. Lessor also hereby agrees for the benefit of the mortgagee under applicable law;any mortgage complying with clause (C) of subparagraph (iii) of this SECTION 11.2 that Lessor will not acquire or claim, as against such mortgagee, any right, title or interest in any engine or propeller subject to the lien of such mortgage as the result of such engine being installed on the Airframe or such propeller being installed on the Airframe or any Engine at any time while such engine or propeller is subject to the lien of such mortgage.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Republic Airways Holdings Inc)
Possession. The OwnerCompany will not, without the prior written consent of MortgageeAdministrative Agent, shall not sell, assign, lease or otherwise in any manner deliver, transfer or relinquish possession or control of, or transfer the right, title or interest of the AircraftCompany in, the Airframe or any Engine or install any Engineexcept that, or permit any Engine to unless a Potential Event of Default shall have occurred and be installedcontinuing, on any airframe other than Company may without the Airframe; except that the Owner may, without such prior written consent of MortgageeAdministrative Agent:
(i) Subject transfer possession of the Airframe or permit any Permitted Lessee Engine other than by lease to the United States of America or any instrumentality thereof pursuant to the Civil Reserve Air Fleet Program (as administered pursuant to Executive Order 12656, or any substitute order) or any similar or substitute programs;
(ii) transfer possession of the Airframe or any Engine to the manufacturer thereof for testing or other similar purposes or any other organization for service, repairs, maintenance or overhaul or, to the extent permitted by Section 4(e) hereof, for alterations or modifications;
(iii) subject (i) the Airframe to normal interchange agreements with Domestic Carriers or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case arrangements of the type customary in the commercial United States airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of business; PROVIDEDbusiness which do not contemplate or require the transfer of title to, HOWEVERuse for the remainder of its useful life, that or registration of the Airframe or title to or use for the remainder of its useful life of such Engine and if OwnerCompany's title to or use for the remainder of its useful life, of the Airframe or any such Engine is Engines shall be divested under any such agreement or arrangement, then such Engine divesture shall be deemed to have suffered be an Event of Loss as of with respect to the date of Airframe or such divestiture, Engine and Owner Company shall comply with Section 4.04(e4(f) in respect thereof;
(iiiv) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe which is owned by Owner or such Permitted Lessee, as the case may be, Company free and clear of all Liens, Liens except (xA) those permitted under clauses (i) or (ii) of the definition of Permitted Liens and Encumbrances in the Credit Agreement, (B) those that do not apply only to the engines (other than the Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety), and (yC) the rights of third parties any Domestic Carrier, under normal interchange agreements which are customary in the airline industry and do not contemplate or pooling agreements and arrangements require the transfer of title to such airframe or the type that would be permitted under Section 4.02(b)(i);engines installed thereon; 159
(ivv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Company or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee Company subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if provided: (xA) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, the lease or any such secured financing arrangement, conditional sale or other security agreement covering such airframe and (B) except Liens of the type permitted by clause (iiiiv) above above; and (yB) Owner or Permitted Lessee, as the case may be, Administrative Agent shall have received from the lessor, mortgagee, conditional vendor or secured party or conditional sellerand each of the purchasers, in respect mortgagees and encumbrancers of such airframelessor, conditional vendor or secured party of such airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale agreement or other agreement mortgage covering such airframe), whereby such Person lessor, conditional vendor or secured party and each of the purchasers, mortgagees and encumbrancers of such lessor, conditional vendor or secured party expressly and effectively agrees that neither it nor its successors and assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while when such Engine is subject to the Lien of this Trust IndentureMortgage;
(vvi) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted LesseeCompany, leased to Owner by Company or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee Company subject to a conditional sale or other security agreement under circumstances where neither clause (iiiiv) or nor clause (ivv) above is applicable; PROVIDED, HOWEVER, provided that any divesture of title to such Engine resulting from such installation shall be deemed to be an Event of Loss with respect to such Engine, Engine and Owner Company shall comply with Section 4.04(e4(f) hereof in respect thereof;
(vivii) Transfer lease any Engine and/or the Airframe to a Domestic Air Carrier other than an ACMI Contract or permit wet lease permitted under clause (ix) below, in the ordinary course of its business, for a term (including without limitation, any Permitted Lessee to transfer possession option of the Aircraftlessee to renew or extend) not to exceed six (6) months (in the case of a lease of an Engine without the Airframe, not to exceed twelve (12) months), provided that (A) no such lease contemplates or requires the transfer of title to or registration of the Airframe or title to any Engine, (B) if Company's title to any Engine or the Airframe shall be divested under any such agreement or arrangement, such divestiture shall be deemed to be an Event of Loss for all purposes, (C) any such lease shall provide that the lessee may not deliver, transfer or relinquish possession or sublease the Airframe or any Engine without the prior written consent of Administrative Agent, other than as permitted by Section 4(d)(i), (ii) or (iii) hereof, (D) the lease agreement shall provide that any amounts payable by the lessee to Company thereunder are assigned hereunder to Administrative Agent for the benefit of Lenders and that if an Event of Default has occurred and is continuing, upon notice to the U.S. Governmentlessee by Administrative Agent, the lessee shall pay all such amounts to Administrative Agent for the benefit of Lenders unless and until such lessee shall have received notice from Administrative Agent for the benefit of Lenders, that the Event of Default has been cured, (E) the lease agreement shall provide that the lessee shall agree to maintain and operate any Engine and/or the Airframe in accordance with Section 4(c) hereof, 160 and (F) any such lease will be permissible only if Administrative Agent receives a perfected first priority security interest in any such lease;
(viii) lease any Engine and/or the Airframe to a Foreign Air Carrier other than an ACMI Contract or wet lease permitted under clause (ix) below, in which event Owner shall promptly notify Mortgagee in writing the ordinary course of its business, under arrangements that provide for a term (including, without limitation, any such transfer option of possession and, the lessee to renew or extend) not to exceed six (6) months (in the case of a lease of an Engine without the Airframe, not to exceed twelve (12) months), provided that (A) no such lease contemplates or requires the transfer of title to or registration of the Airframe or title to any Engine, (B) if Company's title to any Engine or the Airframe shall be divested under any such agreement or arrangement, such divestiture shall be deemed to be an Event of Loss for all purposes, (C) any such lease shall provide that the lessee may not deliver, transfer or relinquish possession or sublease the Airframe or any Engine without the prior written consent of Administrative Agent other than as permitted by Section 4(d)(i), (ii) or (iii) hereof, (D) the lease agreement shall provide that any amounts payable by the lessee to Company thereunder are assigned hereunder to Administrative Agent for the benefit of Lenders and that if an Event of Default has occurred and is continuing, upon notice to the lessee by Administrative Agent, the lessee shall pay all such amounts to Administrative Agent for the benefit of Lenders, (E) the lease agreement shall provide that the lessee shall agree to maintain and operate any Engine and/or the Airframe in accordance with Section 4(c) hereof, and (F) any such lease will be permissible only if Administrative Agent receives a perfected first priority security interest in any such lease;
(ix) enter into an ACMI Contract or wet lease for the Airframe and the Engines or engines installed thereon with any third party pursuant to CRAF, in which Company has operational control of the Airframe and any Engines installed thereon such notification shall identify operation to be performed solely by name, address employees of Company possessing all current certificates and telephone numbers licenses that would be required under the Contracting Office Representative or Representatives for the Military Airlift Command applicable laws of the United States Air Force to whom notices must be given and to whom requests or claims must be made to for the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other performance by such employees of similar arrangement with respect to functions within the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder)United States; PROVIDED THAT the Ownerprovided that Company's obligations hereunder shall continue in full force and effect notwithstanding any such charter ACMI Contract or Wet Lease or other similar arrangement;wet lease; and
(viiix) So long as no Event of Default shall have occurred and be continuing, and subject to sell the provisions Aircraft or the Spare Engine upon satisfaction of the immediately following paragraphconditions and compliance with the terms of subsection 6.7 of the Credit Agreement. provided, enter into however, that the rights of any transferee (other than pursuant to a lease with respect to sale permitted by the Aircraft, terms hereof) who receives possession of the Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) permitted by the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will hereof shall be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are made subject and subordinate to all to, and any lease permitted by this Section 4(d) (other than a lease permitted by Section 4(d)(ix)) shall be made expressly subject and subordinate to, the terms lien and security interest of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;Mortgage
Appears in 1 contract
Samples: Credit Agreement (Atlas Air Inc)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the any Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the an Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (ix) the any Airframe to normal interchange agreements or (iiy) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Aircraft Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e4.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the any Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the such Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the any Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Enginessuch Engine, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased owned by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Aircraft Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e4.05(b) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the any Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the any Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the any Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the of such Aircraft, Airframe and Engines Engine will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the such Aircraft, Airframe or Engines Engine in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the such Aircraft, Airframe or Engines Engine by the government of such jurisdiction so long as the such Aircraft, Airframe or Engines Engine are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Aircraft Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 4.02(e) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of any Airframe or Engine hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that any Airframe or Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Trust Indenture. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease; provided that such prior written notice shall not be required under this clause (w) in connection with a lease entered into or in effect on or prior to the date such Airframe or Engine becomes subject to this Trust Indenture); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect (subject to such exclusions and exceptions, as is standard for air carriers flying similar airframes and engines, on routes comparable to those flown by the applicable Airframe or Engine); (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframes and Engines subject to such lease; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Note Holder by acceptance of an Equipment Note agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or owned by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on any Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (United Airlines, Inc.)
Possession. The Owner, without the prior consent of Mortgagee, Lessee shall not lease sublease the Aircraft or otherwise in any manner deliver, relinquish or transfer or relinquish possession of the Aircraft, the Airframe or any Engine to any Person or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that , during the Owner mayTerm, without such the prior written consent of MortgageeLessor, provided, however, that so long as Lessee shall comply with the provisions of Section 11 hereof Lessee may, without the prior written consent of Lessor:
(ia) Subject or permit any Permitted Lessee to subject enter into an ACMI Lease in the ordinary course of Lessee's business;
(ib) deliver possession of the Airframe or an Engine to normal interchange agreements the manufacturer thereof for testing or other similar purposes or to any organization for service, repair, maintenance or overhaul work on the Airframe or Engines or for alterations or modifications in or additions to the Airframe or Engines, provided such organization is qualified and duly licensed to perform such work and otherwise to the extent required or permitted by the terms of this Lease;
(iic) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial European airline industry applicable to other similar aircraft and engines operated by Lessee, if any, and entered into by Owner or such Permitted Lessee, as the case may be, Lessee in the ordinary course of business; PROVIDEDits business with any Certificated Air Carrier, HOWEVERprovided that (i) no such agreement or arrangement contemplates or requires the transfer of title to any Engine, that and (ii) if OwnerLessor's title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered an Event of be a Total Loss as of the date of with respect to such divestiture, Engine and Owner Lessee shall comply with Section 4.04(e) 12.2 hereof in respect thereofof such Engine;
(iid) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or Lessee provided that following such Permitted Lessee, as the case may be, installation such Engine shall be free and clear of all Liensliens, except (xi) Permitted Liens and those that do not apply to the EnginesLiens, and (yii) those which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety), and (C) those created by the rights of third parties other Certificated Air Carriers under normal interchange or pooling agreements and or arrangements customary in the airline industry which do not contemplate, permit or require the transfer of the type that would be permitted under Section 4.02(b)(i)title to such airframe or engines installed thereon;
(ive) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangementsecurity agreement, but only if provided that (xi) such airframe is free and clear of all Liens, liens except (A) the rights of the parties to such the lease, conditional sale or any such secured financing arrangement, covering such airframe other security agreement and (B) Liens of the type permitted by clause (iiid) above above, and (yii) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) effectively provides that such Engine shall not become subject to the Lien of such lease, conditional sale or (iv) above is applicable; PROVIDEDother security agreement, HOWEVER, that any notwithstanding the installation thereof on such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereofairframe;
(vif) Transfer or permit Notwithstanding any Permitted Lessee to transfer transfers of possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer permitted pursuant to CRAFthis Section 8.12, in such notification Lessee shall identify by name, address at all times during the Term of this Lease remain fully liable and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force obligated to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially perform all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against Lease to the same extent as if such Permitted Air Carrier under applicable law;transfer had not occurred.
Appears in 1 contract
Samples: Lease Agreement (Airfund Ii International Limited Partnership)
Possession. The OwnerOwner shall not, without the Mortgagee's prior consent of Mortgageewritten consent, shall not lease or otherwise in any manner deliver, transfer transfer, or relinquish possession of the Aircraft, the Airframe Airframe, or any Engine Engine, or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgageeconsent:
(i1) Subject subject or permit any Permitted Lessee to subject (iaa) the Airframe to normal interchange agreements agreements, or (iibb) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Lessee in the ordinary course of business; PROVIDED, HOWEVERprovided, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section (S) 4.04(e) in respect thereof;
(ii2) Deliver deliver or permit any Permitted Lessee to deliver possession of the Aircraft, the Airframe, any Engine Engine, or any Part (xaa) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance maintenance, or overhaul work on the Aircraft, the Airframe, any Engine Engine, or any Part, or, to the extent required or permitted by Section (S) 4.04, for alterations or modifications in or additions to the Aircraft, Airframe the Airframe, or any Engine Engine, or (ybb) to any Person for the purpose of transport to a Person referred to in the preceding clause (xaa);
(iii3) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, except (xaa) Permitted Liens and those that do not apply to the Engines, and (ybb) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i(S) 4.02(b)(1);
(iv4) Install install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased or owned by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale sale, or other secured financing arrangement, but only if (xaa) such airframe is free and clear of all Liens, except (Ai) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe airframe, and (Bii) Liens of the type permitted by clause (iii3) above of this (S) 4.02(b), and (ybb) Owner or Permitted Lessee, as the case may be, shall have Lessee has received from the lessor, mortgageesecured party, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title title, or interest in, or Lien on, such Engine by reason of the installation of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v5) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii3) or nor clause (iv4) above is applicable; PROVIDED, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;(S) 4.02
Appears in 1 contract
Possession. The OwnerBorrower shall not, without the Security Agent’s prior consent of Mortgageewritten consent, shall not lease or otherwise in any manner deliver, transfer transfer, or relinquish possession of the Aircraft, the Airframe Airframe, or any Engine Engine, or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner Borrower may, without such prior written consent of Mortgageeconsent:
(i1) Subject subject or permit any Permitted Lessee to subject (iaa) the Airframe to normal interchange agreements or (iibb) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner Borrower or such Permitted Lessee, as the case may be, Lessee in the ordinary course of business; PROVIDED, HOWEVERprovided, that (i) no such agreement or arrangement contemplates (other than as contemplated with respect to an Event of Loss) or requires the transfer of title to the Airframe or any Engine and (ii) if Owner's Borrower’s title to any such Airframe or Engine is divested under any such agreement or arrangement, then such Airframe or Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner Borrower shall comply with Section 4.04(eSections 4.4(e) or 4.5 (as the case may be) in respect thereof;
(ii2) Deliver deliver or permit any Permitted Lessee to deliver possession of the Aircraft, the Airframe, any Engine Engine, or any Part (xaa) to the manufacturer thereof or to any third-party maintenance provider (approved by the Aviation Authority for that Aircraft, Airframe, Engine or Part) for testing, service, repair, maintenance maintenance, or overhaul work on the Aircraft, the Airframe, any Engine Engine, or any Part, or, to the extent required or permitted by Section 4.04the terms of this Agreement, for alterations or modifications in or additions to the Aircraft, Airframe the Airframe, or any Engine Engine, or (ybb) to any Person for the purpose of transport to a Person referred to in the preceding clause (xaa);
(iii3) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner Borrower or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, except (xaa) Permitted Liens and those that do not apply to the Engines, and (ybb) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i4.2(b)(1);
(iv4) Install install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner Borrower or such Permitted Lessee, or purchased or owned by Owner Borrower or such Permitted Lessee subject to a mortgage, security agreement, conditional sale sale, or other secured financing arrangement, but only if (xaa) such airframe is free and clear of all Liens, except (Ai) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe airframe, and (Bii) Liens of the type permitted by clause (iii3) above of this Section 4.2(b), and (ybb) Owner Borrower or Permitted Lessee, as the case may be, shall have Lessee has received from the lessor, mortgageesecured party, secured party or conditional seller, seller in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title title, or interest in, or Lien on, such Engine by reason of the installation of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v5) Install install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner Borrower or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii3) or nor clause (iv4) above is applicableof this Section 4.2(b) applies; PROVIDED, HOWEVERprovided, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner Borrower shall comply with Section 4.04(e4.4(e) hereof in respect thereof;
(vi6) Transfer transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe the Airframe, or any Engine to (aa) a U.S. Governmental Entity pursuant to CRAF or (bb) to a U.S. Governmental Entity when required by applicable Law, as the U.S. Governmentcase may be. Neither such event shall, in which event Owner for the avoidance of doubt, be deemed to be an Event of Loss. Borrower shall promptly notify Mortgagee (to the extent Borrower is permitted to do so by applicable U.S. Law) Security Agent in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in and such notification shall identify by the name, address and telephone numbers number of the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii7) Enter enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's provided, that Borrower’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangementand provided, further that Borrower shall promptly notify Security Agent in writing if any Wet Lease in respect of an Aircraft is more than six (6) months in duration (and such Aircraft is the only aircraft that is subject to such Wet Lease);
(viii) So long as 8) if no Event of Default shall have occurred and be continuingexists, and subject to the provisions of the immediately following paragraphparagraphs, enter into a lease (a “Permitted Lease”) with respect to the Aircraft, Airframe the Airframe, or any Engine to with any Permitted Air Carrier that or Permitted Manufacturer who is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution dissolution, or similar proceeding and or with a U.S. Governmental Entity (other than with any branch of the military of the U.S. Government), subject to compliance with the following conditions:
(i) Borrower shall not have substantially all of its property in the possession give at least thirty (30) days’ prior written notice to Security Agent of any liquidatorPermitted Lease under specifying (a) the Permitted Lessee, trustee(b) the term of the Permitted Lease, receiver (c) the domicile of the Permitted Lessee, and (d) the country in which the Aircraft is to be ordinarily stored overnight by such Permitted Lessee (as contemplated by the Permitted Lease). Such notice shall be accompanied by the proposed lease agreement.
(ii) Any Permitted Lease shall include appropriate provisions:
(A) requiring the maintenance, inspection, insurance, operation and inspection of the Aircraft, Airframe or similar person; PROVIDED THATEngine(s) leased thereby to be in accordance with the relevant provisions of this Mortgage,
(B) requiring the Permitted Lessee to keep the Aircraft, Airframe or Engine(s) leased thereby free and clear of Liens other than Permitted Liens,
(C) prohibiting further sublease (except as provided below) of the Aircraft, Airframe or Engine(s),
(D) containing in the case only of a proposed lease to a Permitted Foreign Air Carrier, an express waiver by such lessee of the defense of sovereign immunity (1) in any suit, action or proceeding arising out of or relating to such Permitted Lease and (2) with respect to the defense of such lessee’s property from execution or attachment,
(E) providing that the Aircraft shall not be operated or used, and shall be grounded if the insurance coverages required by the terms of Section 4.6 of this Mortgage are not in effect, and
(F) requiring Permitted Lessee to ensure that registration of the Aircraft in the name of Borrower under the Transportation Code except as permitted in Section 4.2(c), and
(G) such other terms and conditions as may be reasonably requested by the Security Agent in connection with a Permitted Lease to a U.S. Governmental Entity.
(iii) in the case of a lease to a Permitted Foreign Air Carrier, Security Agent shall receive evidence reasonably satisfactory to it that: (A1) all necessary approvals from any Governmental Entity required for the United States maintains diplomatic relations with leased Airframe or any leased Engine or engine, as the case may be, to be imported and, to the extent reasonably obtainable and reasonably requested, exported from the applicable country of domicile upon repossession of such Permitted Foreign Air Carrier (or, in equipment by Security Agent shall have been obtained prior to the case importation of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) imported Airframe and/or Engine under any such lease; and (B2) Owner shall have furnished Mortgagee the insurance requirements of Section 4.6 and Annex B are satisfied; and
(iv) in connection with any Permitted Lease to a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualifiedBorrower shall obtain at its own cost, as a result, in whole or in part, of condition to the delivery to the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws Permitted Lessee of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines any Engine, an opinion from reputable counsel selected by Borrower and reasonably acceptable to Security Agent located in the event country of such Permitted Lessee’s domicile (or, if Borrower determines during the term of the requisition by such government Permitted Lease that the Aircraft or Airframe or any Engine will be based or primarily used in a country other than the country of such title Permitted Lessee’s domicile, an additional opinion or opinions of reputable counsel selected by Borrower and reasonably acceptable to Security Agent located in such other country) in form and substance reasonably satisfactory to Security Agent; provided, that (unless Owner 1) the rights of any transferee who receives possession by reason of a transfer permitted by this Section 4.2(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall provide insurance be subject and subordinate to this Mortgage and to Security Agent’s rights, powers and remedies hereunder, (2) Borrower shall remain primarily liable for the performance of this Mortgage and all the terms and conditions of this Mortgage and the other Operative Agreements shall remain in effect to the amounts required with respect to hull insurance under this Trust Indenture covering the requisition same extent as if such transfer had not occurred, and no transfer of title to possession of the Aircraft, Airframe or Engines any Engine or any failure of performance under or with respect to such transfers shall in any way discharge (except to the extent performed by such transferee) or diminish any of Borrower’s obligations to Security Agent hereunder or under any Operative Agreement, and (3) no lease or transfer of possession otherwise in compliance with this Section 4.2(b) shall (aa) result in any registration or re-registration of an Aircraft (except to the government extent permitted by Section 4.2(e)) or the maintenance, operation, or use thereof except in compliance with Sections 4.2(c) and 4.2(d), or (bb) permit any action not permitted to Borrower hereunder. In the case of any Permitted Lease, Borrower will include in such jurisdiction so long lease appropriate provisions which (x) make such lease expressly subject and subordinate to this Mortgage and (y) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to Borrower’s possession and use provided in this Mortgage and provide for the maintenance and inspection of the Aircraft in the same manner in all material respects as the applicable provisions of this Mortgage. No Permitted Lessee may sublease the Airframe or any Engine, except that a Permitted Manufacturer or Affiliate of Borrower that is a Permitted Lessee may sublease to any Permitted Lessee to whom a lease would be permitted under this Section 4.2; provided that (A) such sublease shall not permit any sub-subleasing of the Aircraft, the Airframe, or any Engine (and Borrower shall ensure that the same does not occur), (B) such sublease shall be assigned to Borrower to secure such Permitted Manufacturer’s obligations under its lease pursuant to a sublease assignment and sublessee consent each in form and substance reasonably satisfactory to Security Agent, and (C) Borrower shall comply, and shall cause such sublease to comply, with all requirements and conditions of this Section 4.2 as if such sublease were a direct lease from Borrower to the sublessee. Borrower shall reimburse Security Agent for all of its reasonable out-of-pocket fees and expenses (including reasonable fees and disbursements of counsel) incurred in connection with any such lease or sublease. Except as otherwise provided herein and without in any way relieving Borrower from its primary obligation for the performance of its obligations under this Mortgage, Borrower may in its sole discretion permit a lessee to exercise any or all rights which Borrower would be entitled to exercise under Section 4.2 and Section 4.4, and may cause a lessee to perform any or all of Borrower’s obligations under Article 4, and Security Agent agrees to accept actual and full performance thereof by a lessee in lieu of performance by Borrower. Security Agent hereby agrees, and each Lender by acceptance of an Equipment Note agrees, for the benefit of each lessor, conditional seller, or secured party of any engine leased, purchased, or owned by Borrower or any Permitted Lessee subject to a lease, conditional sale, or other security agreement that Security Agent, each Lender, and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, or secured party, any right, title, or interest in any engine as the result of the installation of such engine on the Airframe or Engines are at any time while such engine is subject to such lease) , conditional sale, or other security agreement and (z) the agreement owned by such lessor or conditional seller or subject to a security interest in favor of such secured party; provided, Borrower or any Permitted Air Carrier Lessee has received from any such lessor, secured party, or conditional seller in respect of any airframe leased, purchased or owned by Borrower or any Permitted Lessee, a written agreement (which may be a copy of the lease, security agreement, conditional sale agreement, or other agreement covering such airframe), whereby such Person agrees that neither it nor its rights under successors will acquire or claim any right, title, or interest in an Engine by reason of the lease are installation of such Engine on any such airframe at any time while such Engine is subject to the Lien of this Mortgage. As security for Borrower’s due and subordinate punctual payment and performance of all of its covenants and obligations in the Operative Agreements, Borrower hereby grants to Security Agent a security interest in all of Borrower’s right, title, and interest in and to each Permitted Lease having a term in excess of one year of any Aircraft, Airframe, or Engine, including with respect to all payments, including payments of rent, insurance proceeds (other than public liability insurance proceeds), and other amounts due or to become due thereunder. Borrower shall enter into a “Lease Assignment” and a “Lessee Consent” each in form and substance reasonably satisfactory to Security Agent with respect to each Permitted Lease of the terms Airframe having a term of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;one or more years.
Appears in 1 contract
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Loan Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Loan Trustee:
(i) Subject subject, or permit any permit, if a lease to be Permitted Lessee is then in effect, such Permitted Lessee to subject (i) subject, the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements interchange, pooling, borrowing or pooling other agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company or such Permitted Lessee, as the case may be, Lessee in the ordinary course of its business; PROVIDED, HOWEVER, provided that if Owner's the Company’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall (or shall cause any Permitted Lessee to) comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver deliver, or permit any such Permitted Lessee to deliver deliver, possession of the Aircraft, Airframe, any Airframe or such Engine or any Part to (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, maintenance or reconditioning, restoration, storage, maintenance, overhaul work on or other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine terms hereof or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install transfer or permit the transfer of possession of the Airframe or such Engine to any Government pursuant to a lease, contract or other instrument;
(iv) subject, or permit such Permitted Lessee to install subject, the Airframe or any Engine to the CRAF Program or transfer possession of the Airframe or such Engine to the United States government or any instrumentality or agency thereof in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that the Company shall (or shall cause such Permitted Lessee to) (A) promptly notify the Loan Trustee upon transferring possession of the Airframe or such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install, or permit such Permitted Lessee to install, an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that that do not apply to such Engine and (B) the rights of third parties under interchange, pooling, borrowing or other agreements or arrangements that would be permitted under clause (i) above; (vi) install, or permit such Permitted Lessee to install, an Engine on an airframe leased to Company (or such Permitted Lessee) or purchased or owned by the Company (or such Permitted Lessee) subject to a lease, conditional sale and/or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or any conditional sale or security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner either (1) the Company or such Permitted Lessee, as the case may be, Lessee shall have received obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, in such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
Indenture or (v2) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lesseelease, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDED, HOWEVER, provides that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and become subject to the provisions Lien of the immediately following paragraphsuch lease, enter into a lease with respect conditional sale or other security agreement at any time while such Engine is subject to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against Indenture, notwithstanding the installation thereof on such Permitted Air Carrier under applicable lawairframe;
Appears in 1 contract
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Loan Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Loan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Ownerthe Company's title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, Airframe or any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, maintenance or maintenance, overhaul work on or other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or any Permitted Lessee Engine to any Government pursuant to a lease, contract or other instrument; 39
(iv) subject the Airframe or any Engine to the CRAF Program or transfer possession of the Airframe or any Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided, that the Company (A) shall promptly notify the Loan Trustee upon transferring possession of the Airframe or any Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Military Airlift Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased to the Company (or any Permitted Lessee) or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or conditional sale or other security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, lessor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Loan Trustee (it being understood that an agreement from such lessor or secured party substantially in the form of the final sentence of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Loan Trustee), whereby such Person lessor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding the installation thereof on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof, if such installation shall adversely affect the Loan Trustee's security interest in such Engine, the Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Company with Section 7.05(b);
(viviii) Transfer lease any Engine or permit the Airframe and Engines to any Permitted Lessee United States air carrier as to transfer possession which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. Sections 41101-41112) or successor provision that gives like authority; and
(ix) lease any Engine or the Airframe and Engines to (A) any foreign air carrier other than those set forth in clause (B), (B) any foreign air carrier that is at the inception of the Aircraftlease based in and a domiciliary of a country listed in Exhibit B hereto and (C) any foreign air carrier consented to in writing by the Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (x) in the case of a lease to a foreign air carrier under clause (A) above, Airframe the Loan Trustee receives at the time of such lease (1) written confirmation from each of the Rating Agencies that such lease would not result in a reduction of the rating for any class of Pass Through Certificates below the then current rating for such class of Pass Through Certificates or a withdrawal or suspension of the rating of any Engine class of Pass Through Certificates and (2) an opinion of counsel to the U.S. GovernmentCompany (such counsel to be reasonably satisfactory to the Loan Trustee) to the effect that there exist no possessory rights in favor of the lessee under the laws of such lessee's country which would, in which event Owner shall promptly notify Mortgagee in writing upon bankruptcy or insolvency of or other default by the Company and assuming at such time such lessee is not insolvent or bankrupt, prevent the taking of possession of any such transfer Engine or the Airframe and any such Engine by the Loan Trustee in accordance with and when permitted by the terms of possession andSection 4.02 upon the exercise by the Loan Trustee of its remedies under Section 4.02, (y) in the case of a lease to any foreign air carrier (other than a foreign air carrier principally based in Taiwan), the United States maintains diplomatic relations with the country in which such foreign air carrier is based at the time such lease is entered into and (z) in the case of any transfer pursuant lease to CRAFa foreign air carrier, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that carrier is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in provided that the case only rights of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country any lessee or other transferee who receives possession of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including the Loan Trustee's rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture is enforceable to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer or possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and (c) or (y) permit any action not permitted to be taken by the Company with respect to the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. The Loan Trustee, and each Noteholder by acceptance of an Equipment Note, agrees, for the benefit of the lessor or secured party of any airframe or engine leased to the Company (or any Permitted Lessee) or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Loan Trustee and the Noteholders will not acquire or claim, as against such Permitted Air Carrier lessor or secured party, any right, title or interest in (A) any engine or engines owned by the lessor under applicable law;such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the lessor under such lease or subject to a security interest in favor of the secured party under such conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is subject to such lease or conditional sale or other security agreement. The Loan Trustee acknowledges that any "wet lease" or other similar arrangement under which the Company maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 1 contract
Samples: Indenture and Security Agreement (American Airlines Inc)
Possession. The Owner, without the prior consent of Mortgagee, Lessee shall not lease sublease the Aircraft or otherwise ---------- in any manner deliver, relinquish or transfer or relinquish possession of the Aircraft, the Airframe or any Engine to any Person or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that , during the Owner mayTerm, without such the prior written consent of MortgageeLessor; provided, however, that so long as Lessee shall comply with the provisions of Section 11 hereof Lessee may, without the prior written consent of Lessor:
(ia) Subject or permit enter into a contract, commonly referred to in the U.S. airline industry as a "wet lease," under which Lessee has operational control of the Aircraft in the ordinary course of Lessee's business (which shall not be considered a transfer of possession hereunder), provided that Lessee's obligations under this Lease shall continue in full force and effect notwithstanding any Permitted Lessee to subject such "wet lease" contract;
(ib) deliver possession of the Airframe or an Engine to normal interchange agreements the manufacturer thereof or to a FAA Repair Station for testing or other similar purposes or for service, repair, maintenance or overhaul work on the Airframe or Engines or for alterations or modifications in or additions to the Airframe or Engines, to the extent required or permitted by the terms of this Lease;
(iic) subject any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial United States airline industry applicable to other similar aircraft and engines operated by Lessee and entered into by Owner or such Permitted Lessee, as the case may be, Lessee in the ordinary course of businessits business with any Certificated Air Carrier; PROVIDEDprovided that (A) no such agreement or arrangement contemplates or requires the transfer of title to such Engine, HOWEVER, that and (B) if OwnerLessor's title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered an Event of be a Total Loss as of the date of with respect to such divestiture, Engine and Owner Lessee shall comply with Section 4.04(e) 12.2 hereof in respect thereofof such Engine;
(iid) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, Lessee free and clear of all Liens, except (xi) Permitted Liens and those that do not apply to the EnginesLiens, and (yii) those which apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety), and (C) those created by the rights of third parties other Certificated Air Carriers under normal interchange or pooling agreements and or arrangements customary in the airline industry which do not contemplate, permit or require the transfer of the type that would be permitted under Section 4.02(b)(i)title to such airframe or engines installed thereon;
(ive) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if security agreement; provided that (xi) such airframe Airframe is free and clear of all Liens, liens except (A) the rights of the parties to such the lease, conditional sale or any such secured financing arrangement, covering such airframe other security agreement and (B) Liens of the type permitted by clause (iiid) above above, and (yii) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), whereby such Person agrees effectively provides that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is shall not become subject to the Lien of this Trust Indenturesuch lease, conditional sale or other security agreement, notwithstanding the installation thereof on such airframe;
(vf) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, by Lessee or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iiid) or nor clause (ive) above is applicable; PROVIDED, HOWEVER, provided that any divestiture of Lessor's title to such Engine resulting from such installation shall be deemed an Event of a Total Loss with respect to such Engine, Engines and Owner Lessee shall comply with Section 4.04(e) hereof in respect thereof12.2 hereof;
(vig) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. GovernmentUnited States of America or any instrumentality thereof under to the Civil Reserve Air Fleet Program authorized by 10 U.S.C. (S)9511, in which event Owner shall promptly notify Mortgagee in writing of et seq., or any ------ substantially similar program provided such transfer of possession anddoes not exceed the Basic Term. If an Event of Default occurs under this Lease and Lessor elects to pursue its remedies under Section 14 to terminate this Lease and repossess the Aircraft (or Engine), in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of Lessor will so notify the United States Air Government by sending a written communication to: Headquarters, AMC Xxxxxxxxxxx Xxxxxx - XXXX, Xxxxx Xxx Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;Base, Illinois 62225-5007.
(viih) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with of America for a period that does not continue beyond the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations end of the parties thereto enforceable Basic Term when required by Applicable Law; provided that the rights of any transferee who receives possession by reason of a transfer permitted by this Section 8.10 (other than by a transfer of an Engine which is deemed a Total Loss if substitution is being duly effected under the laws of such jurisdiction, (wSection 12.2 hereof) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will shall be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable Lease. In the event Lessor shall have received from a lessor or secured party of any airframe leased to Lessee or purchased by Lessee subject to a conditional sale or other security agreement, a written agreement which provides that such lessor or secured party under such agreement shall not acquire or claim any right, title or interest in any Engine, and such lease or conditional sale or other security agreement covering such airframe also covers an engine or engines owned by such lessor under such lease or subject to a security interest in favor of such secured party under such conditional sale or other security agreement, Lessor hereby agrees for the benefit of such lessor or secured party that Lessor will not acquire or claim, as against such Permitted Air Carrier under applicable law;lessor or secured party, any right, title or interest in any such engine as the result of such engine being installed on the Airframe at any time while such engine is owned by such lessor or is subject to such conditional sale or other security agreement or security interest in favor of such secured party. The existence of a clause substantially similar to the foregoing in such lease, conditional sale or other security agreement whereby the lessor or secured party, as the case may be, is substituted for Lessor, shall suffice as the required written agreement.
(i) Notwithstanding any transfers of possession of Engines permitted pursuant to this Section 8.10, Lessee shall at all times during the Term of this Lease remain fully liable and obligated to perform all of the terms of this Lease to the same extent as if such transfer had not occurred.
Appears in 1 contract
Samples: Lease Agreement (Airfund Ii International Limited Partnership)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that so long as no Event of Default shall have occurred and be continuing at the time of such lease, delivery, transfer or relinquishment, the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (iaa) the Airframe to normal interchange agreements agreements, or (iibb) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-third- party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to with any Permitted Air Carrier that is not then the subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable lawlaw (subject to customary exceptions);
(1) the rights of any transferee who receives possession by reason of a transfer permitted by this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Trust Indenture,
(2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect and (3) Owner shall ensure that no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall (x) adversely affect the United States registration of the Aircraft, unless the Aircraft is subject to reregistration in accordance with the provisions of Section 4.02(d) or the maintenance, operation or use thereof except in compliance with Sections 4.02(c) and 4.04(a) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 4.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Trust Indenture, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 4.06; and (v) require that the Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner's possession and use provided in this Trust Indenture and provisions for the maintenance and inspection of the Aircraft that are the same in all material respects as are contained herein. No lease permitted under this Section 4.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee, Standard & Poor's and Moody's (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, at least 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 4.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest (subject to Permitted Liens) of Mortgagee in the Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease, and any such lease for a term of more than a year shall be assigned to Mortgagee to secure Owner's obligations hereunder. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner's obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Note Holder by acceptance of an Equipment Note agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, trust indenture or other security agreement that Mortgagee, each Note Holder and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on the Airframe at any time while such engine is subject to such lease, conditional sale, trust indenture or other security agreement and owned by such lessor or conditional seller or subject to a trust indenture or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary 34 -29- in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, of the Aircraft, Airframe and Engines Engines, will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;
Appears in 1 contract
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, of the Aircraft, Airframe and Engines Engines, will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable law;
Appears in 1 contract
Possession. The OwnerAircraft and the operations performed therewith, without subject to applicable law and the prior consent rules and regulations of Mortgageethe Aeronautics Authority, shall be under the exclusive control of Lessee until the Aircraft is returned pursuant to Clause 14. Lessee shall not lease or otherwise in any manner without Lessor's prior written consent deliver, relinquish or transfer or relinquish possession of the Aircraft, the Airframe Aircraft or any Engine part thereof, except for transfer of possession and replacement of Parts as provided in Clause 8; provided, however, that, so long as no Default or install any EngineEvent of Default shall have occurred and be continuing, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner Lessee may, without such prior written consent subject to the other provisions of Mortgagee:
this Clause 6: (ia) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDED, HOWEVER, that if Owner's title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine Aircraft or any Part (x) part thereof to the manufacturer thereof or to any third-party maintenance provider Authorized Maintenance Performer for testing, service, repair, maintenance or overhaul work on required by the Aircraftterms hereof, Airframeor for modifications, any Engine alterations or any Part, or, to the extent required or additions permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine provisions of this Lease; or (yb) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an another airframe owned by Owner or such Permitted Lessee, of the same type and model as the case may beAirframe, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange which other airframe is owned or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted by Lessee, or hired or bailed or conditionally purchased by Owner or such Permitted Lessee subject to a mortgage, security hire purchase or conditional sale agreement, conditional sale or other secured financing arrangement, but only if provided that (xi) such airframe is free and clear of all Liens, Liens except (A) the rights right of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, hire purchase or conditional sale agreement or other security agreement covering such airframe), whereby (ii) the owner of such Person airframe expressly agrees in the lease, hire purchase or conditional sale agreement or other security agreement that it will not acquire or claim any right, title or interest in, or Lien on, such in any Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lesseetime, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or no such other airframe on which an Engine is installed by virtue of this Clause 6.1 may be subleased to any other entity and (iv) above if Lessee installs an Engine, or permits an Engine to remain installed, on another such airframe during any period for which Basic Rent is applicable; PROVIDEDpayable by reference to Block Hour utilisation, HOWEVERLessee shall, that any such installation shall be deemed an Event without prejudice to its obligations under paragraph 4 of Loss with respect Part 1 of Schedule 3 in relation to such Engine, and Owner shall comply pay to Lessor rent for such Engine for each day during such period that the Engine remains installed on another such airframe at a rate to be determined by Lessor with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee reference to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives then current market engine lease rates for the Military Airlift Command same type of engines as the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdictionEngines, payable on to Lessor on demand. No agreement or arrangement described in a currency freely convertible into Dollars, for (b) above shall contemplate or require the loss transfer of title to the Aircraft, Airframe or Engines in the event any Engine. The rights of the requisition any person who receives possession by such government reason of such title (unless Owner a transfer permitted by this Clause 6.1 shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to all the terms of this Trust Indenture Lease, and any Mortgage (including, without limitation, the restrictions on the use of the Aircraft contained in Clause 6.3 and Lessor's right to terminate the Term upon the occurrence of an Event of Default which is enforceable against continuing and to obtain possession of the Aircraft and each part thereof without regard to any such Permitted Air Carrier under applicable law;agreement and the rights of any person thereunder), and Lessee shall remain primarily liable hereunder for the performance of all of the terms hereof to the same extent as if such transfer had not occurred. Any transfer of any part of the Aircraft pursuant to this Clause 6.1 which results in a transfer of title to such part shall be an Event of Default.
Appears in 1 contract
Possession. The Owner, without the prior consent of Mortgagee, Company shall not lease lease, or otherwise in any manner deliver, relinquish or transfer or relinquish possession of the Aircraft, the Airframe or any Engine to any Person or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; , so long as such Airframe is subject to the Lien of this Indenture, without the prior consent of the Indenture Trustee, which consent shall not be unreasonably withheld, except that the Owner may, Company may without such the prior written consent of Mortgageethe Indenture Trustee:
(i) Subject enter into a charter or permit any Permitted Lessee to subject (i) wet lease or other similar arrangement under which the Company has operational control of the Airframe and any Engines installed thereon in the course of the Company's business (which shall not be considered a transfer of possession hereunder), provided that the Company's obligations under this Indenture shall continue in full force and effect notwithstanding any such charter or wet lease or other similar arrangement;
(ii) deliver possession of the Airframe or any Engine or any Part to normal the manufacturer thereof or to any organization for testing, service, repair, maintenance, overhaul work or other similar purposes or for alterations or modifications or additions required or permitted by the terms of this Indenture;
(iii) subject the Airframe and any Engines installed thereon to interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in arrangements which are applicable to other similar property owned by or leased to the commercial airline industry Company and are entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of business; PROVIDEDits airline business with any air carrier, HOWEVERprovided, that (A) no such agreement or arrangement shall under any circumstances result in, contemplate or require the transfer of title to the Aircraft or Airframe and (B) if Ownerthe Company's title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of with respect to such Engine and the date of such divestiture, and Owner Company shall comply with Section 4.04(e4.03(e) hereof in respect thereof;
(iiiv) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, Company free and clear of all Liens except (A) Permitted Liens, except (xB) Permitted Liens and those that do not which apply only to the engines (other than the Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe, and (yC) those created by the rights of third parties other air carriers under normal interchange or pooling agreements and or other arrangements customary in the airline industry which do not contemplate, permit or require the transfer of the type that would be permitted under Section 4.02(b)(i)title to such airframe or engines installed thereon;
(ivv) Install or permit any Permitted Lessee to install an Engine on an airframe airframe, leased to Owner or such Permitted Lessee, the Company or purchased by Owner or such Permitted Lessee the Company subject to a mortgage, conditional sale or other security agreement, provided that such Engine shall not thereby become subject to the lien of such lease, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(vvi) Install or permit any Permitted Lessee to install an Engine on an airframe airframe, owned by Owner or such Permitted Lesseethe Company, leased to Owner or such Permitted Lessee, by the Company or purchased by Owner or such Permitted Lessee the Company subject to a conditional sale or other security agreement under circumstances where neither clause (iiiiv) or nor clause (ivv) above is applicable; PROVIDED, HOWEVER, provided that any divestiture or non-curable impairment of title to such Engine resulting from such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner the Company shall comply with Section 4.04(e4.03 (e) hereof in respect thereofhereof;
(vivii) Transfer or permit any Permitted Lessee to transfer possession of the AircraftAirframe or Engine to the United States of America or any instrumentality thereof pursuant to the Civil Reserve Air Fleet Program (as established and administered pursuant to Executive Order 11490, as amended, as superseded by United States Executive Order No. 12656) or any similar or substitute program;
(viii) transfer possession of the Airframe or any Engine to the U.S. GovernmentUnited States of America, or to a foreign government, when required by Applicable Law (it being understood that nothing in which event Owner this clause (viii) shall promptly notify Mortgagee in writing of any relieve the Company from its obligations under Section 4.04(a) if such transfer becomes an Event of Loss); and
(ix) transfer possession and, in of the case of Airframe or any transfer pursuant Engine to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force of America or any instrumentality or agency thereof pursuant to whom notices must be given and to whom requests a sublease, contract or claims must be made to the extent applicable under CRAFother instrument;
(viix) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So so long as no Event of Specified Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraphthis Section 4.01(b), enter into a lease with respect to any Engine or the AircraftAirframe and Engines or engines then installed on the Airframe to a Permitted Lessee which is not the subject of a petition filed under any bankruptcy laws or other insolvency laws in effect at the time such lease is entered into, Airframe or any Engine to any Permitted Air Carrier other foreign air carrier; provided that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a foreign air carrier that is not a Permitted Foreign Air CarrierLessee, (A) the United States maintains diplomatic relations with Indenture Trustee receives at the country of domicile time of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable lease an opinion of counsel, counsel to the Company (which counsel shall be reasonably satisfactory to Mortgagee, the Indenture Trustee) to the effect that there exist no possessory rights in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations favor of the parties thereto enforceable lessee under the laws of such jurisdictionsublessee's country which would, (w) it upon bankruptcy or insolvency of or other default by the Company and assuming that at such time such lessee is not necessary for Mortgagee to register insolvent or qualify to do business in bankrupt, prevent the return of such jurisdiction, if not already so registered Engine or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized such Engine or engine to the Indenture Trustee in such jurisdiction, accordance with and when permitted by the terms of Section 7.02 upon the exercise by the Indenture Trustee of its remedies under Section 7.02; provided that (y1) the Laws rights of such jurisdiction any transferee who receives possession by reason of domicile require fair compensation a transfer permitted by the government this Section 4.01(b) (other than by a transfer of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss an Engine which is deemed an Event of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to all the terms of this Trust Indenture, (2) the Company shall remain primarily liable hereunder for the performance of all the terms of this Indenture is enforceable against and all the terms and conditions of this Indenture and the other applicable Operative Agreements shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 4.01(b) shall (x) result in any registration or reregistration of the Aircraft except to the extent permitted by Section 4.01(e) or the maintenance, operation or use thereof except in compliance with Sections 4.01(c) and 4.01(d), or (y) permit any action not permitted to the Company hereunder. In the case of any lease permitted under this Section 4.01(b), the Company will include in such Permitted Air Carrier under applicable law;lease appropriate provisions which (a) make such lease expressly subject and subordinate to all of the terms of this Indenture including the rights of the Indenture Trustee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (b) expressly prohibit any subleasing of the Airframe
Appears in 1 contract
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Loan Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Loan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any subject such Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's the Company’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or such Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, maintenance or reconditioning, restoration, storage, maintenance, overhaul work on or other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or such Engine to any Permitted Lessee Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or such Engine to the CRAF Program or transfer possession of the Airframe or such Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that the Company (A) shall promptly notify the Loan Trustee upon transferring possession of the Airframe or such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased, purchased or owned by the Company (or any Permitted Lessee) subject to a lease, conditional sale and/or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or any conditional sale or security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Loan Trustee (it being understood that an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, in such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding the installation thereof on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of , if such installation shall adversely affect the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, Loan Trustee’s security interest in such notification shall identify Engine, the Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement Company with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunderSection 7.05(b); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So lease such Engine or the Airframe and Engines to any United States air carrier as to which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. §§41101-41112) or successor provision that gives like authority, or to any manufacturer of airframes or engines (or an Affiliate thereof acting under an unconditional guarantee of such manufacturer), so long as such manufacturer and, if applicable, such Affiliate is domiciled in the United States); provided that no Event of Default shall have occurred exist at the time any such lease is entered into; and
(ix) lease such Engine or the Airframe and be continuing, and subject Engines to (A) any foreign air carrier that is at the provisions inception of the immediately following paragraphlease based in and a domiciliary of a country listed in Exhibit B hereto, enter into (B) any foreign manufacturer of airframes or engines (or a foreign Affiliate of a United States or foreign manufacturer of airframes or engines acting under an unconditional guarantee of such manufacturer), so long as such foreign manufacturer or (if applicable) foreign Affiliate is domiciled in a country indicated with an asterisk on Exhibit B hereto, or (C) any foreign air carrier consented to in writing by the Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (x) in the case of a lease to, or guarantee by, any entity pursuant to this Section 7.02(a)(ix), (1) other than a foreign carrier principally based in Taiwan, the United States maintains diplomatic relations with respect to the Aircraftcountry in which such entity is based and domiciled at the time such lease is entered into, Airframe or any Engine to any Permitted Air Carrier that (2) no Event of Default exists at the time such lease is entered into and (3) such entity is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, and (y) in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and any foreign manufacturer or foreign Affiliate under clause (B) Owner above, the re-registration conditions set forth in Section 7.02(e) shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory be satisfied notwithstanding anything to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business contrary in such jurisdiction, if not already so registered clause (B); provided that the rights of any lessee or qualified, as a result, in whole or in part, other transferee who receives possession of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including the Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and Section 7.02(c) or (y) permit any action not permitted to be taken by the Company with respect to the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year.a The Loan Trustee, and each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note, agrees, for the benefit of the Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to the Company (or any Permitted Lessee) or leased to or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Loan Trustee and the Noteholders will not acquire or claim, as against the Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in (A) any engine or engines owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such Permitted Air Carrier lease or conditional sale or other security agreement. The Loan Trustee acknowledges that any “wet lease” or other similar arrangement under applicable law;which the Company maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 1 contract
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04the terms hereof, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) To the extent permitted by Section 4.04(c) hereof, subject any appliances, Parts or other equipment owned by the Owner and removed from the Airframe or any Engine to any pooling arrangement referred to in Section 4.04(c) hereof;
(viii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viiiix) So long as no Event of Default shall have occurred and be continuing, continuing and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to with any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) on the date of such lease the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, of the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable lawlaw (subject to customary exceptions);
Appears in 1 contract
Possession. The OwnerCompany shall not, without the prior written consent of Mortgageethe Loan Trustee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that provided that, so long as the Owner mayCompany shall comply with the provisions of Section 7.06, the Company may without such the prior written consent of Mortgageethe Loan Trustee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any subject such Engine to normal interchange agreements or pooling agreements or arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, Company in the ordinary course of its business; PROVIDED, HOWEVER, provided that (A) no such agreement or arrangement contemplates or requires the transfer of title to the Airframe and (B) if Owner's the Company’s title to any such Engine is shall be divested under any such agreement or arrangement, then such Engine divestiture shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestitureEngine, and Owner the Company shall comply with Section 4.04(e7.05(b) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Airframe or such Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider Person for testing, service, repair, maintenance or reconditioning, restoration, storage, maintenance, overhaul work on or other similar purposes or for alterations, modifications or additions to the Aircraft, Airframe, any Airframe or such Engine or any Part, or, to the extent required or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)terms hereof;
(iii) Install transfer or permit the transfer of possession of the Airframe or such Engine to any Permitted Lessee Government pursuant to a lease, contract or other instrument;
(iv) subject the Airframe or such Engine to the CRAF Program or transfer possession of the Airframe or such Engine to the United States government in accordance with applicable laws, rulings, regulations or orders (including, without limitation, any transfer of possession pursuant to the CRAF Program); provided that the Company (A) shall promptly notify the Loan Trustee upon transferring possession of the Airframe or such Engine pursuant to this clause (iv) and (B) in the case of a transfer of possession pursuant to the CRAF Program, shall notify the Loan Trustee of the name and address of the responsible Contracting Office Representative for the Air Mobility Command of the United States Air Force or other appropriate Person to whom notices must be given and to whom requests or claims must be made to the extent applicable under the CRAF Program;
(v) install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) Permitted Liens and Liens that apply only to the engines (other than Engines), appliances, parts, instruments, appurtenances, accessories, furnishings and other equipment (other than Parts) installed on such airframe (but not to the airframe as an entirety) and (B) the rights of third parties under interchange agreements or pooling or similar arrangements that would be permitted under clause (i) above;
(vi) install an Engine on an airframe leased, purchased or owned by the Company (or any Permitted Lessee) subject to a lease, conditional sale and/or other security agreement; provided that (A) such airframe is free and clear of all Liens except (1) the rights of the parties to the lease or any conditional sale or security agreement covering such leaseairframe, or any such secured financing arrangementtheir successors and assigns, covering such airframe and (B2) Liens of the type permitted by clause (iiiv) above of this Section 7.02(a) and (yB) Owner or Permitted Lessee, as either (1) the case may be, Company shall have received obtained from the lessor, mortgagee, conditional vendor or secured party or conditional seller, in respect of such airframe, airframe a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other security agreement covering such airframe), in form and substance satisfactory to the Loan Trustee (it being understood that an agreement from such lessor, conditional vendor or secured party substantially in the form of the penultimate paragraph of this Section 7.02(a) shall be deemed to be satisfactory to the Loan Trustee), whereby such Person lessor, conditional vendor or secured party expressly agrees that neither it nor its successors or assigns will not acquire or claim any right, title or interest in, or Lien on, in such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture or (2) such lease, conditional sale or other security agreement provides that such Engine shall not become subject to the Lien of such lease, conditional sale or other security agreement at any time while such Engine is subject to the Lien of this Indenture, notwithstanding the installation thereof on such airframe;
(vvii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner the Company (or such any Permitted Lessee), leased to Owner the Company (or such any Permitted Lessee, ) or purchased by Owner the Company (or such any Permitted Lessee Lessee) subject to a conditional sale or other security agreement under circumstances where neither clause (iiiv) or nor clause (ivvi) above of this Section 7.02(a) is applicable; PROVIDED, HOWEVER, provided that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e7.05(b) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of , if such installation shall adversely affect the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, Loan Trustee’s security interest in such notification shall identify Engine, the Loan Trustee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement Company with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunderSection 7.05(b); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So lease such Engine or the Airframe and Engines to any United States air carrier as to which there is in force a certificate issued pursuant to the Transportation Code (49 U.S.C. §§41101-41112) or successor provision that gives like authority, or to any manufacturer of airframes or engines (or an Affiliate thereof acting under an unconditional guarantee of such manufacturer), so long as such manufacturer and, if applicable, such Affiliate is domiciled in the United Xxxxxx); provided that no Event of Default shall have occurred exist at the time any such lease is entered into; and
(ix) lease such Engine or the Airframe and be continuing, and subject Engines to (A) any foreign air carrier that is at the provisions inception of the immediately following paragraphlease based in and a domiciliary of a country listed in Exhibit B hereto, enter into (B) any foreign manufacturer of airframes or engines (or a foreign Affiliate of a United States or foreign manufacturer of airframes or engines acting under an unconditional guarantee of such manufacturer), so long as such foreign manufacturer or (if applicable) foreign Affiliate is domiciled in a country indicated with an asterisk on Exhibit B hereto, or (C) any foreign air carrier consented to in writing by the Loan Trustee with the consent of a Majority in Interest of Noteholders; provided that (x) in the case of a lease to, or guarantee by, any entity pursuant to this Section 7.02(a)(ix), (1) other than a foreign carrier principally based in Taiwan, the United States maintains diplomatic relations with respect to the Aircraftcountry in which such entity is based and domiciled at the time such lease is entered into, Airframe or any Engine to any Permitted Air Carrier that (2) no Event of Default exists at the time such lease is entered into and (3) such entity is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, and (y) in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and any foreign manufacturer or foreign Affiliate under clause (B) Owner above, the re-registration conditions set forth in Section 7.02(e) shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory be satisfied notwithstanding anything to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business contrary in such jurisdiction, if not already so registered clause (B); provided that the rights of any lessee or qualified, as a result, in whole or in part, other transferee who receives possession of the proposed lease, (x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in any Engine by reason of a transfer permitted by this Section 7.02(a) (other than the event transfer of the requisition by such government an Engine which is deemed an Event of such title (unless Owner Loss) shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be subject and subordinate to to, and any permitted lease shall be made expressly subject and subordinate to, all the terms of this Trust Indenture, including the Loan Trustee’s rights to repossess pursuant to Section 4.02 and to avoid such lease upon such repossession, and the Company shall remain primarily liable hereunder for the performance and observance of all of the terms and conditions of this Indenture to the same extent as if such lease or transfer had not occurred, any such lease shall include appropriate provisions for the maintenance and insurance of the Aircraft, the Airframe or such Engine, and no lease or transfer of possession otherwise in compliance with this Section shall (x) result in any registration or re-registration of the Aircraft except to the extent permitted in Section 7.02(e) or the maintenance, operation or use thereof that does not comply with Section 7.02(b) and Section 7.02(c) or (y) permit any action not permitted to be taken by the Company with respect to the Aircraft hereunder. The Company shall promptly notify the Loan Trustee and the Rating Agencies of the existence of any such lease with a term in excess of one year. The Loan Trustee, and each Noteholder by acceptance of an Equipment Note, and each Related Noteholder by acceptance of a Related Equipment Note, agrees, for the benefit of the Company (and any Permitted Lessee) and for the benefit of the lessor, conditional vendor or secured party of any airframe or engine leased to the Company (or any Permitted Lessee) or leased to or purchased or owned by the Company (or any Permitted Lessee) subject to a conditional sale or other security agreement, that the Loan Trustee and the Noteholders will not acquire or claim, as against the Company (or any Permitted Lessee) or such lessor, conditional vendor or secured party, any right, title or interest in (A) any engine or engines owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of such engine or engines being installed on the Airframe at any time while such engine or engines are subject to such lease or conditional sale or other security agreement or (B) any airframe owned by the Company (or any Permitted Lessee) or the lessor under such lease or subject to a security interest in favor of the secured party under any conditional sale or other security agreement as the result of any Engine being installed on such airframe at any time while such airframe is enforceable against subject to such Permitted Air Carrier lease or conditional sale or other security agreement. The Loan Trustee acknowledges that any “wet lease” or other similar arrangement under applicable law;which the Company maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 7.02(a).
Appears in 1 contract
Samples: Indenture and Security Agreement (American Airlines Inc)
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the any Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except that the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the any Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline aviation industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e2.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the any Aircraft, any Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the such Aircraft, such Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04, 2.04 for alterations or modifications in or additions to the such Aircraft, such Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i2.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust IndentureMortgage;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e2.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the any Aircraft, Airframe or any Engine to the U.S. GovernmentGovernment pursuant to CRAF, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the any Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the any Aircraft, any Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdiction, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's ’s Lien in respect of, the such Aircraft, such Airframe and Engines will be recognized in such jurisdiction, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the such Aircraft, such Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture Mortgage covering the requisition of title to the such Aircraft, such Airframe or Engines by the government of such jurisdiction so long as the such Aircraft, such Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture Mortgage is enforceable against such Permitted Air Carrier under applicable law;; provided that (1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 2.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of this Mortgage, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Mortgage and all the terms and conditions of this Mortgage and the other Loan Documents shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 2.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 2.02(d) or the maintenance, operation or use thereof except in compliance with Sections 2.02(c) and 2.02(d) or (y) permit any action not permitted to the Owner hereunder. In the case of any lease permitted under this Section 2.02(b), the Owner will include in such lease appropriate provisions which (t) make such lease expressly subject and subordinate to all of the terms of this Mortgage, including the rights of the Mortgagee to avoid such lease in the exercise of its rights to repossession of the Airframe and Engines hereunder; (u) require the Permitted Lessee to comply with the terms of Section 2.06; and (v) require that any Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Owner’s possession and use provided in this Mortgage. No lease permitted under this Section 2.02(b) shall be entered into unless (w) Owner shall provide written notice to Mortgagee (such notice in the event of a lease to a U.S. Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required by Section 2.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the security interest and International Interest (subject to Permitted Liens) of Mortgagee in such Aircraft, Airframe and Engines; and (z) Owner shall reimburse Mortgagee for all of its actual out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by Mortgagee in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Mortgage, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 2.02 and 2.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article II, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. Mortgagee hereby agrees, and each Lender, respectively, agrees, for the benefit of each lessor, conditional seller, indenture trustee or secured party of any engine leased to, or purchased by, Owner or any Permitted Lessee subject to a lease, conditional sale, Mortgage or other security agreement that Mortgagee, each Lender and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller, indenture trustee or secured party, any right, title or interest in any engine as the result of such engine being installed on any Airframe at any time while such engine is subject to such lease, conditional sale, Mortgage or other security agreement and owned by such lessor or conditional seller or subject to a Mortgage or security interest in favor of such indenture trustee or secured party.
Appears in 1 contract
Samples: Aircraft Mortgage and Security Agreement (Wheels Up Experience Inc.)
Possession. The OwnerCompany, without the prior consent of MortgageeCollateral Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the any Aircraft, the Airframe any Airframe, any Engine or any Spare Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the an Airframe; , except that the Owner Company may, without such prior written consent of MortgageeCollateral Agent:
(i) Subject subject or permit any Permitted Lessee to subject (i) the any Airframe to normal interchange agreements or (ii) any Engine or any Spare Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's the [C Mortgage and Security Agreement] Company’s title to any such Engine or Spare Engine is divested under any such agreement or arrangement, then such Engine or Spare Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner Company shall comply with Section 4.04(e3.04(e) in respect thereof;
(ii) Deliver deliver or permit any Permitted Lessee to deliver possession of the any Aircraft, any Airframe, any Engine, any Spare Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the any Aircraft, any Airframe, any Engine, any Spare Engine or any Part, or, to the extent required or permitted by Section 4.04the terms hereof, for alterations or modifications in or additions to the any Aircraft, Airframe any Airframe, any Engine or any Spare Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install install or permit any Permitted Lessee to install an Engine or Spare Engine on an airframe owned by Owner the Company or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines or the Spare Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i3.02(b)(i);
(iv) Install install or permit any Permitted Lessee to install an Engine or Spare Engine on an airframe leased to Owner the Company or such Permitted Lessee, or purchased by Owner the Company or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner the Company or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine or such Spare Engine by reason of such Engine or such Spare Engine being installed on such airframe at any time while such Engine or such Spare Engine is subject to the Lien of this Trust IndentureC Mortgage;
(v) Install install or permit any Permitted Lessee to install an Engine or Spare Engine on an airframe owned by Owner the Company or such Permitted Lessee, leased to Owner the Company or such Permitted Lessee, or purchased by Owner the Company or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine or Spare Engine, as the case may be, and Owner the Company shall comply with Section 4.04(e3.04(e) hereof in respect thereof;; [C Mortgage and Security Agreement]
(vi) Transfer transfer or permit any Permitted Lessee to transfer possession of the any Aircraft, Airframe any Airframe, any Engine or any Spare Engine to the U.S. Government, in which event Owner the Company shall promptly notify Mortgagee the Collateral Agent in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter to the extent permitted by Section 3.04(c) hereof, subject any appliances, Parts or other equipment owned by the Company and removed from any Airframe, any Engine or any Spare Engine to any pooling arrangement referred to in Section 3.04(c) hereof;
(viii) enter into a charter or Wet Lease or other similar arrangement with respect to the any Aircraft or any other aircraft on which any Engine or Spare Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's Company’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viiiix) So so long as no Event of Default shall have occurred and be continuing, continuing and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the any Aircraft, Airframe any Airframe, any Engine or any Spare Engine to with any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar personperson (a “Permitted Lessee”); PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) on the date of such lease the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner Company shall have furnished Mortgagee the Collateral Agent a favorable opinion of counsel, reasonably satisfactory to Mortgageethe Collateral Agent, in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (w) it is not necessary for Mortgagee the Collateral Agent to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's the Collateral Agent’s Lien in respect of, of the Aircraft, Airframe and Airframes, Engines or Spare Engines, as the case may be, will be recognized as a first priority (subject to Permitted Liens) security interest and enforceable in such jurisdictionjurisdiction (including the Collateral Agent’s right to repossess such Aircraft), (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe Airframes, Engines or Engines Spare Engines, as the case may be, in the event of the requisition by such government of such title (unless Owner Company shall provide insurance in the amounts required with respect to hull [C Mortgage and Security Agreement] insurance under this Trust Indenture C Mortgage covering the requisition of title to the Aircraft, Airframe Airframes, Engines or Spare Engines by the government of such jurisdiction so long as the Aircraft, Airframe Airframes, Engines or Spare Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture C Mortgage is enforceable against such Permitted Air Carrier under applicable law;law (subject to customary exceptions); provided that (1) the rights of any Permitted Lessee or other transferee who receives possession by reason of a transfer permitted by this Section 3.02(b) (other than by a transfer of an Engine or Spare Engine which is deemed an Event of Loss) shall be subject and subordinate to, and any lease permitted by this paragraph (b) shall be expressly subject and subordinate to, all the terms of this C Mortgage, (2) the Company shall remain primarily liable for the performance of all of the terms of this C Mortgage and all the terms and conditions of this C Mortgage and the other Transaction Documents shall remain in effect, (3) the Company shall furnish to the Collateral Agent evidence reasonably satisfactory to the Collateral Agent that the insurance required pursuant to Section 3.06 remains in effect and such Permitted Lease shall require such insurance to remain in effect throughout the term thereof; (4) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest (subject to Permitted Liens) and International Interest of the Collateral Agent in the Aircraft, Airframes, Engines or Spare Engines, as the case may be; (5) the Company shall reimburse the Collateral Agent for all of its reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel, incurred by the Collateral Agent in connection with any such lease; and (6) the Company shall ensure that no lease or transfer of possession otherwise in compliance with this Section 3.02(b) shall permit any action not permitted to the Company hereunder. Except as otherwise provided herein and without in any way relieving the Company from its primary obligation for the performance of its obligations under this C Mortgage, the Company may in its sole discretion permit a Permitted Lessee (but not a sublessee) to exercise any or all rights which the Company would be entitled to exercise under Sections 3.02 and 3.04, and may cause a Permitted Lessee (but not a sublessee) to perform any or all of the Company’s obligations under Article III hereof, and the Collateral Agent agrees to accept actual and full performance thereof by a Permitted Lessee (but not a sublessee) in lieu of performance by the Company. The Company shall promptly, but not later than 10 Business Days after entering into such Permitted Lease, notify the Collateral Agent of the existence of such Permitted Lease with a term in excess of one year and provide a copy of such lease to the Collateral Agent. No pooling agreement, Permitted Lease or other relinquishment of possession of any Airframe, any Engine or any Spare Engine shall in any way discharge or diminish any of the Company’s obligations to the Collateral Agent under this C Mortgage or constitute a waiver or forbearance of Collateral Agent’s rights or remedies hereunder. The Collateral Agent agrees, and each Holder by acceptance of a Security agrees, for the benefit of the Company (and any Permitted Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine or Spare Engine) owned by the Company (or any Permitted Lessee), any lessor of any engine (other than an Engine or Spare [C Mortgage and Security Agreement]
Appears in 1 contract
Samples: Mortgage and Security Agreement
Possession. The Owner, without the prior consent of Mortgagee, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the Airframe; except provided, that so long as such action shall not deprive the Mortgagee of the perfected Lien of this Agreement on the Airframe or any Engine, the Owner may, without such prior written consent of Mortgagee:
(i) Subject or permit any Permitted Lessee to subject (i) the Airframe to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that if Owner's ’s title to any such Engine is divested under any such agreement or arrangement, then such Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner shall comply with Section 4.04(e) in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) to the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.04the terms hereof, for alterations or modifications in or additions to the Aircraft, Airframe or any Engine or (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x);
(iii) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i), provided that the Owner’s title to such Engine and the first priority Lien of this Trust Indenture shall not be divested or impaired as a result thereof;
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenture;
(v) Install or permit any Permitted Lessee to install an Engine on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, Engine and Owner shall comply with Section 4.04(e) hereof in respect thereof; the Mortgagee not intending hereby to waive any right or interest it may have to or in such Engine under applicable law until compliance by the Owner with such Section 4.04(e);
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner Owner, or such Permitted Lessee, shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) To the extent permitted by Section 4.04(c) hereof, subject any appliances, Parts or other equipment owned by the Owner and removed from the Airframe or any Engine to any pooling arrangement referred to in Section 4.04(c) hereof;
(viii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT provided that the Owner's ’s obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viiiix) So Subject to the provisions of the immediately following paragraph and so long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to with any Permitted Air Carrier that is not then the subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air CarrierCarrier which is not a U.S. person, (A) on the date of such lease the United States maintains diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory to Mortgagee, in the country of domicile of such Permitted Foreign Air Carrier, that (vu) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (wv) it is not necessary for Mortgagee to register or qualify to do business in such jurisdiction, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (xw) Mortgagee's ’s Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (x) there exist no possessory rights in favor of the Lessee under such lease under the laws of such Lessee’s country of domicile that would, upon bankruptcy or insolvency of the Owner or other Event of Default and assuming at such time such Lessee is not insolvent or bankrupt, prevent the return or repossession of the Aircraft in accordance with the terms of this Trust Indenture, (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of this Trust Indenture is enforceable against such Permitted Air Carrier under applicable lawlaw (subject to customary exceptions);
(1) the rights of any transferee who receives possession by reason of a transfer permitted by this Section 4.02(b) (other than by a transfer of an Engine which is deemed an Event of Loss) shall be subject and subordinate to, and any lease permitted by this paragraph (b) shall be expressly subject and subordinate to, all the terms of this Trust Indenture, (2) the Owner shall remain primarily liable for the performance of all of the terms of this Trust Indenture and all the terms and conditions of this Trust Indenture and the other Operative Agreements shall remain in effect, (3) the Owner shall furnish to Mortgagee evidence reasonably satisfactory to Mortgagee that the insurance required pursuant to Section 4.06 remains in effect and (4) Owner shall ensure that no lease or transfer of possession otherwise in compliance with this Section 4.02(b) shall permit any action not permitted to the Owner hereunder. Any lease permitted by this Section 4.02(b) shall expressly prohibit any further sublease by the lessee. Except as otherwise provided herein and without in any way relieving the Owner from its primary obligation for the performance of its obligations under this Trust Indenture, the Owner may in its sole discretion permit a lessee to exercise any or all rights which the Owner would be entitled to exercise under Sections 4.02 and 4.04, and may cause a lessee to perform any or all of the Owner’s obligations under Article IV, and the Mortgagee agrees to accept actual and full performance thereof by a lessee in lieu of performance by the Owner. The Owner shall promptly, but not later than 10 Business Days after entering into such lease, notify the Mortgagee and the Rating Agencies of the existence of such lease with a term in excess of one year and provide a copy of such lease to the Mortgagee and the Rating Agencies. No pooling agreement, Permitted Lease or other relinquishment of possession of the Airframe or any Engine shall in any way discharge or diminish any of Owner’s obligations to the Mortgagee under this Trust Indenture or constitute a waiver of Mortgagee’s rights or remedies hereunder. The Mortgagee agrees, and each Note Holder by acceptance of an Equipment Note agrees, and each Related Note Holder by acceptance of a Related Equipment Note agrees, for the benefit of Owner (and any Permitted Lessee) and for the benefit of any mortgagee or other holder of a security interest in any engine (other than an Engine) owned by Owner (or any Permitted Lessee), any lessor of any engine (other than an Engine) leased to Owner (or any Permitted Lessee) and any conditional vendor of any engine (other than an Engine) purchased by Owner (or any Permitted Lessee) subject to a conditional sale agreement or any other security agreement, that no interest shall be created under this Trust Indenture in any engine so owned, leased or purchased and that neither the Mortgagee, the Note Holders, the Related Note Holders nor their successors or assigns will acquire or claim, as against Owner (or any Permitted Lessee) or any such mortgagee, lessor or conditional vendor or other holder of a security interest or any successor or assignee of any thereof, any right, title or interest in such engine as the result of such engine being installed on the Airframe; provided, however, that such agreement of the Mortgagee and Note Holders shall not be for the benefit of any lessor or secured party of an airframe leased to Owner (or any Permitted Lessee) or purchased by Owner (or any Permitted Lessee) subject to a conditional sale or other security agreement or for the benefit of any mortgagee or any other holder of a security interest in an airframe owned by Owner (or any Permitted Lessee), on which airframe Owner (or any Permitted Lessee) then proposes to install an Engine, unless such lessor, conditional vendor, other secured party or mortgagee has expressly agreed (which agreement may be contained in such lease, conditional sale or other security agreement or mortgage) that neither it nor its successors or assigns will acquire, as against Mortgagee, any right, title or interest in an Engine as a result of such Engine being installed on such airframe. Any Wet Lease or similar arrangement under which Owner maintains operational control of the Aircraft shall not constitute a delivery, transfer or relinquishment of possession for purposes of this Section 4.02. The Mortgagee acknowledges that any consolidation or merger of Owner or conveyance, transfer or lease of all or substantially all of Owner’s assets permitted by the Operative Documents shall not be prohibited by this Section 4.02.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Jetblue Airways Corp)
Possession. The OwnerExcept as provided in this SECTION 11 or SECTION 20, Lessee will not, without the prior written consent of MortgageeLessor, shall not lease sublease or otherwise in any manner deliver, transfer or voluntarily relinquish possession, or enter into any contract or arrangement obligating it to deliver, transfer or relinquish possession of the AircraftAirframe, the Airframe or any part thereof, any Engine or Propeller or install any Enginepart of the Airframe, any Engine or Propeller or permit any part of the Airframe, any Engine or Propeller to be installed, on any airframe other than the Airframe; , except as provided in this SECTION 11 or SECTION 20, except that so long as no Default or Event of Default exists, and so long as the Owner action to be taken does not affect Lessor's title to or interest in the Aircraft, Lessee may, without such the prior written consent of MortgageeLessor:
(i) Subject subject any Engine or permit any Permitted Lessee to subject (i) the Airframe Propeller to normal interchange agreements or (ii) any Engine to normal interchange agreements or pooling agreements or arrangements, in each case arrangements customary in the commercial airline industry applicable to other similar engines or propellers operated by Lessee and entered into by Owner or such Permitted Lessee, as the case may be, Lessee in the ordinary course of its business; PROVIDED, HOWEVER, that PROVIDED (A) if OwnerLessor's title to any such Engine or Propeller is divested under pursuant to any such agreement or arrangement, then arrangement or (B) if Lessee relinquishes possession of such Engine or Propeller for a continuous period of more than one hundred eighty (180) consecutive days, there shall be deemed to have suffered be an Event of Loss as of the date of with respect to such divestiture, Engine or Propeller and Owner Lessee shall comply with Section 4.04(e) SECTION 12.4 in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the Aircraft, Airframe, any Engine or any Part (x) component thereof, to the manufacturer thereof or its authorized representatives for testing or other similar purpose or to any third-party maintenance provider organization for testing, service, repair, maintenance or overhaul work on the Aircraft, Airframe, any Engine Aircraft or any Part, or, to the extent required part thereof or permitted by Section 4.04, for alterations or modifications in or additions to the Aircraft, Airframe Aircraft to the extent required or any Engine or (y) to any Person for permitted by the purpose terms of transport to a Person referred to in the preceding clause (x)this Lease;
(iii) Install or permit any Permitted Lessee to install an Engine or a Propeller on an airframe owned by Owner or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Engines, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an Engine on an airframe leased to Owner or such Permitted Lessee, or purchased by Owner or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause under SECTIONS 10.1 (iiie), (f) above and (y) Owner or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframeg), whereby (B) the rights of other U.S. Certificated Air Carriers under normal interchange agreements that are customary in the airline industry and entered into by Lessee in the ordinary course of its business, so long as such Person agrees that it will agreements do not acquire contemplate, permit or claim any right, require the transfer of title or interest in, or Lien on, such Engine by reason of such Engine being installed on to such airframe at or the engines or the propellers installed thereon and (C) the Lien of any time while such mortgage which expressly and effectively provides that each Engine is or Propeller shall not become subject to the Lien thereof, notwithstanding the installation thereof on an airframe or engine subject to the Lien of such mortgage, unless and until Lessee shall become the owner of such Engine or Propeller free of the interests of Lessor therein under this Trust Indenture;Lease.
(viv) Install or permit any Permitted Lessee to install an Engine or a Propeller on an airframe owned by Owner or such Permitted Lessee, leased to Owner or such Permitted Lessee, Lessee or purchased by Owner or such Permitted Lessee subject to a conditional sale or other security agreement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDagreement, HOWEVER, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner shall comply with Section 4.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner shall promptly notify Mortgagee in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the Aircraft, Airframe or any Engine to any Permitted Air Carrier that is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall not have substantially all of its property in the possession of any liquidator, trustee, receiver or similar person; PROVIDED THAT, in the case only of a lease to a Permitted Foreign Air Carrier, (A) such airframe is free and clear of all Liens except the United States maintains diplomatic relations with rights of the country parties to the lease or conditional sale or other security agreement and their purchasers, mortgagees and encumbrancers covering such airframe and except Liens of domicile of such Permitted Foreign Air Carrier the type permitted by clauses (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing DateA) and (B) Owner of subparagraph (iii) of this SECTION 11.2; and (B) such lease, conditional sale or other security agreement expressly and effectively provides that each Engine or Propeller shall have furnished Mortgagee a favorable opinion of counsel, reasonably satisfactory not become subject to Mortgagee, in the country of domicile Lien of such Permitted Foreign Air Carrierlease, that conditional sale or other security agreement, notwithstanding the installation thereof on any airframe subject to the Lien of such lease, conditional sale or other security agreement, unless and until Lessee becomes the owner of such Engine or Propeller free of the interests of Lessor therein under this Lease; or
(v) the terms of such lease are the legal, valid and binding obligations transfer possession of the parties thereto enforceable under Airframe or any Engine or Propeller to the laws United States Government pursuant to a sublease, a copy of which shall be promptly furnished to Lessor, PROVIDED that such jurisdictionsublease (including, (w) it is not necessary for Mortgagee to register or qualify to do business in such jurisdictionwithout limitation, if not already so registered or qualified, as a result, in whole or in part, any option of the proposed lease, sublessee to renew or extend) shall not extend beyond the end of the Term of the Lease. Notwithstanding anything to the contrary in this SECTION 11.2:
(x) Mortgagee's Lien in respect of, the Aircraft, Airframe and Engines will be recognized in such jurisdiction, (y1) the Laws rights of such jurisdiction any transferee or sublessee who receives possession by reason of domicile require fair compensation a transfer permitted by the government this SECTION 11.2 (other than a transfer of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss an Engine or Propeller which is deemed an Event of title to the Aircraft, Airframe or Engines in the event of the requisition by such government of such title (unless Owner Loss) are and shall provide insurance in the amounts required with respect to hull insurance under this Trust Indenture covering the requisition of title to the Aircraft, Airframe or Engines by the government of such jurisdiction so long as the Aircraft, Airframe or Engines are subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are be EXPRESSLY subject and subordinate to all the terms of this Trust Indenture is enforceable Lease during the Term hereof, including without limitation, in each instance, Lessor's rights to repossession pursuant to SECTION 18, and to avoid such transferee's or sublessee's right to possession upon such repossession;
(2) Lessee shall remain primarily liable hereunder for the performance of all the terms of this Lease to the same extent as if such transfer or sublease had not occurred; and
(3) No interchange agreement, sublease or other relinquishment of possession of the Airframe, any Engine or Propeller shall in any way affect the registration of the Aircraft with the FAA, or discharge or diminish any of Lessee's obligations to Lessor or constitute a waiver of any of Lessor's rights and remedies hereunder. It a lease, conditional sale, or other security agreement complies with clause (B) of subparagraph (iv) of this SECTION 11.2, and the lease or conditional sale or other security agreement covering such airframe also covers an engine or engines or propeller or propellers owned by the lessor under such lease or subject to a security interest in favor of such secured party under such conditional sale or other security agreement, Lessor will not acquire or claim, as against such Permitted Air Carrier lessor or secured party, any right, title or interest in any such engine or propeller as the result of such engine or propeller being installed on the Airframe or any propeller being attached to any Engine at any time while such engine or propeller is subject to such lease or conditional sale or other security agreement and owned by such lessor or subject to a security interest in favor of such secured party. Lessor also hereby agrees for the benefit of the mortgagee under applicable law;any mortgage complying with clause (C) of subparagraph (iii) of this SECTION 11.2 that Lessor will not acquire or claim, as against such mortgagee, any right, title or interest in any engine or propeller subject to the lien of such mortgage as the result of such engine being installed on the Airframe or such propeller being installed on the Airframe or any Engine at any time while such engine or propeller is subject to the lien of such mortgage.
Appears in 1 contract
Samples: Aircraft Lease Agreement (Republic Airways Holdings Inc)
Possession. The OwnerCompany, without the prior consent of Mortgageethe Collateral Agent, shall not lease or otherwise in any manner deliver, transfer or relinquish possession of the any Aircraft, the Airframe or any Engine or install any Engine, or permit any Engine to be installed, on any airframe other than the associated Airframe; except that the Owner Company may, without such prior written consent of Mortgageethe Collateral Agent:
(i) Subject or permit any Permitted Lessee to subject (i) the any Airframe to normal interchange agreements or and (ii) any Engine to normal interchange agreements interchange, pooling, borrowing or pooling agreements or similar arrangements, in each case customary in the commercial airline industry and entered into by Owner the Company or such Permitted Lessee, as the case may be, in the ordinary course of business; PROVIDEDprovided, HOWEVERhowever, that (A) no transfer of the registration of any Airframe or Engine shall be effected in connection therewith and (B) if Owner's the Company’s title to any such Airframe or Engine is divested under any such agreement or arrangement, then such Airframe or Engine shall be deemed to have suffered an Event of Loss as of the date of such divestiture, and Owner the Company shall comply with Section 4.04(e3.04(e) or 3.05, as applicable, in respect thereof;
(ii) Deliver or permit any Permitted Lessee to deliver possession of the any Aircraft, Airframe, any Engine or any Part (x) to the Airframe Manufacturer, the Engine Manufacturer, the manufacturer thereof or to any third-party maintenance provider for testing, service, repair, maintenance or overhaul work on the such Aircraft, Airframe, any Engine or any Part, or, to the extent required or permitted by Section 4.043.04, for alterations or modifications in or additions to the such Aircraft, Airframe or any Engine or Engine, (y) to any Person for the purpose of transport to a Person referred to in the preceding clause (x)) or (z) to any storage facility;
(iii) Install or permit any Permitted Lessee to install an any Engine on an airframe owned by Owner the Company or such Permitted Lessee, as the case may be, free and clear of all Liens, except (x) Permitted Liens and those that do not apply to the Enginessuch Engine, and (y) the rights of third parties under normal interchange or pooling agreements and arrangements of the type that would be permitted under Section 4.02(b)(i3.02(b)(i);
(iv) Install or permit any Permitted Lessee to install an any Engine on an airframe leased to Owner the Company or such Permitted Lessee, or purchased owned by Owner the Company or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other secured financing arrangement, but only if (x) such airframe is free and clear of all Liens, except (A) the rights of the parties to such lease, or any such secured financing arrangement, covering such airframe and (B) Liens of the type permitted by clause (iii) above and (y) Owner the Company or Permitted Lessee, as the case may be, shall have received from the lessor, mortgagee, secured party or conditional seller, in respect of such airframe, a written agreement (which may be a copy of the lease, mortgage, security agreement, conditional sale or other agreement covering such airframe), whereby such Person agrees that it will not acquire or claim any right, title or interest in, or Lien on, such Engine by reason of such Engine being installed on such airframe at any time while such Engine is subject to the Lien of this Trust Indenturethe Mortgage;
(v) Install or permit any Permitted Lessee to install an any Engine on an airframe owned by Owner leased to the Company or such Permitted Lessee, leased to Owner Lessee or such Permitted Lessee, or purchased owned by Owner the Company or such Permitted Lessee subject to a mortgage, security agreement, conditional sale or other security agreement secured financing arrangement under circumstances where neither clause (iii) or (iv) above is applicable; PROVIDEDprovided, HOWEVERhowever, that any such installation shall be deemed an Event of Loss with respect to such Engine, and Owner the Company shall comply with Section 4.04(e3.04(e) hereof in respect thereof;
(vi) Transfer or permit any Permitted Lessee to transfer possession of the any Aircraft, Airframe or any Engine to the U.S. Government, in which event Owner the Company shall promptly notify Mortgagee the Collateral Agent in writing of any such transfer of possession and, in the case of any transfer pursuant to CRAF, in such notification shall identify by name, address and telephone numbers the Contracting Office Officer Representative or Representatives for the Military Airlift Command of the United States Air Force to whom notices must be given and to whom requests or claims must be made to the extent applicable under CRAF;
(vii) Enter into a charter or Wet Lease or other similar arrangement with respect to the Aircraft any Aircraft, or any other aircraft on which any Engine may be installed (which shall not be considered a transfer of possession hereunder); PROVIDED THAT the Owner's obligations hereunder shall continue in full force and effect notwithstanding any such charter or Wet Lease or other similar arrangement;
(viii) So long as no Event of Default shall have occurred and be continuing, and subject to the provisions of the immediately following paragraph, enter into a lease with respect to the any Aircraft, Airframe or any Engine to any Permitted Air Carrier that both is not then subject to any bankruptcy, insolvency, liquidation, reorganization, dissolution or similar proceeding and shall does not then have substantially all of its property in the possession of any liquidator, trustee, receiver or similar personperson or any other Person approved in writing by the Collateral Agent; PROVIDED THATprovided that, in the case only of a lease to a Permitted Foreign Air Carrier, (A) the United States maintains normal diplomatic relations with the country of domicile of such Permitted Foreign Air Carrier (or, in the case of Taiwan, diplomatic relations at least as good as those in effect on the Closing Date) and (B) Owner the Company shall have furnished Mortgagee to the Collateral Agent and the Banks a favorable opinion reasonably acceptable to the Collateral Agent of counsel, reasonably satisfactory to Mortgagee, reputable counsel in the country of domicile of such Permitted Foreign Air Carrier, that (v) the terms of such lease are the legal, valid and binding obligations of the parties thereto enforceable under the laws of such jurisdictionjurisdiction (subject to customary exceptions), (w) it is not necessary for Mortgagee the Collateral Agent or any Bank to register or qualify to do business in such jurisdictioncountry, if not already so registered or qualified, as a result, in whole or in part, of the proposed lease, (x) Mortgagee's the Collateral Agent’s Lien in respect of, the such Aircraft, Airframe and Engines Engine will be recognized as a first priority (subject to Permitted Liens) security interest and enforceable, subject to customary exceptions not materially less favorable to the Collateral Agent than on the Closing Date in the United States, in such jurisdictionjurisdiction (including the Collateral Agent’s right to repossess the Aircraft), (y) the Laws of such jurisdiction of domicile require fair compensation by the government of such jurisdiction, payable in a currency freely convertible into Dollars, for the loss of title to the such Aircraft, Airframe or Engines Engine in the event of the requisition by such government of such title (unless Owner the Company shall provide insurance in the amounts required with respect to hull insurance under the Mortgage and this Trust Indenture Agreement covering the requisition of title to the such Aircraft, Airframe or Engines Engine by the government of such jurisdiction so long as the such Aircraft, Airframe or Engines are Engine is subject to such lease) and (z) the agreement of such Permitted Air Carrier that its rights under the lease are subject and subordinate to all the terms of the Mortgage and this Trust Indenture Agreement is enforceable against such Permitted Air Carrier under applicable lawlaw (subject to customary exceptions) and if the lessee is a U.S. Certificated Air Carrier, the Company will be entitled as lessor of the benefits of Section 1110 of the Bankruptcy Code in which the lessee is the debtor;
(1) the rights of any transferee who receives possession by reason of a transfer permitted by any of clauses (i) through (viii) of this Section 3.02(b) (other than by a transfer of any Engine which is deemed an Event of Loss) shall be subject and subordinate to all the terms of the Mortgage and this Agreement, including the rights of the Collateral Agent to void such lease in the exercise of its rights to repossession of any Airframe or any Engine hereunder, (2) the Company shall remain primarily liable for the performance of all of the terms of the Mortgage and this Agreement and all the terms and conditions of the Mortgage and the other Loan Papers shall remain in effect and (3) no lease or transfer of possession otherwise in compliance with this Section 3.02(b) shall (x) result in any registration or re-registration of an Aircraft, except to the extent permitted by Section 3.02(e), or result in the maintenance, operation or use thereof except in compliance with Sections 3.02(c) and 3.02(d) or (y) permit any action not permitted to the Company hereunder. In the case of any lease permitted under this Section 3.02(b), the Company will include in such lease appropriate provisions which (s) make such lease expressly subject and subordinate to all of the terms of the Mortgage and this Agreement, including the rights of the Collateral Agent to void such lease in the exercise of its rights to repossession of any Airframe or any Engine hereunder; (t) require the Permitted Lessee to comply with the terms of Section 3.06; and (u) require that any Airframe or any Engine subject thereto be used in accordance with the limitations applicable to the Company’s possession and use provided in the Mortgage and this Agreement. No lease permitted under this Section 3.02(b) shall be entered into unless (w) the Company shall provide written notice to the Collateral Agent (such notice in the case of a lease to a U.S. Certificated Air Carrier to be given promptly after entering into any such lease or, in the case of a lease to any other Permitted Air Carrier, 10 days in advance of entering into such lease); (x) the Company shall furnish to the Collateral Agent evidence reasonably satisfactory to the Collateral Agent that the insurance required by Section 3.06 remains in effect; (y) all necessary documents shall have been duly filed, registered or recorded in such public offices as may be required fully to preserve the first priority security interest and International Interest (subject to Permitted Liens) of the Collateral Agent in any Aircraft, Airframe and Engines; and (z) the Company shall reimburse the Collateral Agent for all of their respective reasonable out-of-pocket fees and expenses, including, without limitation, reasonable fees and disbursements of counsel to the Collateral Agent incurred by them in connection with any such lease. Except as otherwise provided herein and without in any way relieving the Company from its primary obligation for the performance of its obligations under the Mortgage and this Agreement, the Company may in its sole discretion permit a Permitted Lessee to exercise any or all rights which the Company would be entitled to exercise under Sections 3.02 (other than the right to lease any Aircraft, Airframe or Engine pursuant to Section 3.02(b)(viii)) and 3.04, and may cause a Permitted Lessee to perform any or all of the Company’s obligations under Article III, and the Collateral Agent agrees to accept actual and full performance thereof by a Permitted Lessee in lieu of performance by the Company. The Company shall provide the Collateral Agent a copy of each Permitted Lease which has a term of more than one (1) year promptly after execution thereof. In addition, the Company shall collaterally assign to the Collateral Agent (and take all further actions in order to create, grant, establish, preserve, protect and perfect the validity, perfection and priority of the Liens and security interests created or intended to be created by the Mortgage), as additional security for the Obligations, Company’s rights, but not its obligations, under any such Permitted Lease having a term in excess of one (1) year (provided that so long as no Event of Default shall have occurred and be continuing hereunder, Company shall be entitled to exercise all rights and remedies with respect to such Permitted Lease). In connection with the foregoing assignment, the Company shall deliver any chattel paper originals of any Permitted Lease having a term in excess of one (1) year to the Collateral Agent. The Collateral Agent hereby agrees and each other Secured Party by execution of the Credit Agreement or an “Assignment and Assumption” thereunder agrees, for the benefit of each lessor, conditional seller or secured party of any engine leased to, or purchased by, the Company or any Permitted Lessee subject to a lease, conditional sale or security agreement that the Collateral Agent, each other Secured Party, and their respective successors and assigns will not acquire or claim, as against such lessor, conditional seller or secured party, any right, title or interest in any engine as the result of such engine being installed on an Airframe at any time while such engine is subject to such lease, conditional sale or security agreement and owned by such lessor or conditional seller or subject to a security interest in favor of such secured party.
Appears in 1 contract