EXHIBIT 10.30
FIRST PRIORITY CHATTEL
MORTGAGE AND SECURITY AGREEMENT
This FIRST PRIORITY CHATTEL MORTGAGE AND SECURITY AGREEMENT (this "Chattel
Mortgage"), dated May 7, 1997, between WILMINGTON TRUST COMPANY, a Delaware
banking corporation, not in its individual capacity, except as expressly set
forth herein, but solely as Owner Trustee under the Trust Agreement (as
hereinafter defined), having its chief executive office and principal place of
business at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, (hereinafter called the "Mortgagor"), as Mortgagor, and FINOVA CAPITAL
CORPORATION, a Delaware corporation, having its chief executive office and
principal place of business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000
(hereinafter called the "Mortgagee"), as Mortgagee.
WHEREAS:
(A) The Mortgagor and Mortgagee have entered into Secured Loan Agreement
dated as of May 7, 1997 (hereinafter the "Loan Agreement"), providing for the
making of the Loan (hereinafter defined) by the Mortgagee to the Mortgagor;
(B) It is a condition precedent to the Mortgagee's obligation to make the
Loan to the Mortgagor under the Loan Agreement, that Mortgagor execute and
deliver this Chattel Mortgage for the purposes, among other things, of securing:
(1) the payment of all sums which may become payable by the Mortgagor under the
Loan Agreement and this Chattel Mortgage and each other Loan Document (as
hereinafter defined), and (2) the performance of the covenants, undertakings and
obligations of the Mortgagor under the Loan Agreement, this Chattel Mortgage and
each other Loan Document;
(such payment and performance obligations being hereinafter collectively
referred to as the "Obligations"), and for the purpose of subjecting the
properties and assets hereinafter described to the Lien of this Chattel
Mortgage.
NOW, THEREFORE, in consideration of the premises and Mortgagee's making the
Loan and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound and to secure
the performance of the Obligations, the Mortgagor does hereby grant, bargain,
sell, transfer, convey and mortgage unto the Mortgagee, its successors and
assigns, and gives to the Mortgagee a
first priority security interest in and Lien upon the Flight Equipment (as
hereinafter defined) and a first priority security interest in and Lien upon all
the rest of the following described property, to wit:
SCHEDULE OF MORTGAGED PROPERTY
CLAUSE FIRST.
Airframes
Four (4) Airframes, identified as follows:
FAA Manufacturer's
Manufacturer Model Registration Number Serial Number
----------------- -------- ------------------- --------------
Boeing 747-273C N471EV 00000
XxXxxxxxx Xxxxxxx DC-9-33F N933F 00000
XxXxxxxxx Xxxxxxx DC-9-33F N944F 47194
XxXxxxxxx Xxxxxxx DC-9-33F N945F 47279
together with all jet fuel, appliances, parts, modules, instruments, avionics,
accessories and any other equipment (including, without limitation, radio and
radar) whether now owned or hereafter acquired from time to time thereto
belonging or owned by the Mortgagor and installed in or appurtenant to said
Airframe.
Engines
Ten(10) Xxxxx & Whitney Engines, each such Engine having 750 or more
rated take-off horsepower or the equivalent thereof, identified by the following
model and serial numbers:
Model Serial Numbers
------- --------------
JT9D-7J 662205
JT9D-7J 662254
JT9D-7F 689542
JT9D-7F 685607
JT8D-9A 653895
JT8D-9A 665815
JT8D-9A 666348
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JT8D-9A 656041
JT8D-9A 666937
JT8D-9A 678072
together with any and all Parts incorporated or installed therein or attached
thereto and any and all Parts removed therefrom so long as title thereto shall
remain vested in the Mortgagor in accordance with the terms of the Lease after
removal from such Engine, and all replacements and substitutions therefor and
whether now owned or hereafter acquired by the Mortgagor.
CLAUSE SECOND.
All property which shall be subjected to the Lien of this Chattel
Mortgage by a supplemental chattel mortgage in substantially the form of
Schedule II hereto.
The Airframes and Engines referred to in Clause First and all property
which shall be identified as an Engine in, and subjected to the Lien of this
Chattel Mortgage by, a supplemental chattel mortgage as provided in this Clause
Second are hereinafter collectively referred to as the "Flight Equipment."
CLAUSE THIRD.
All warranties, service contracts and product agreements of any
manufacturer or of any maintenance and overhaul agency of the Flight Equipment,
or any subcontractor or supplier or vendor thereof, to the extent assignable or
enforceable, and any and all rights of the Mortgagor to compel performance of
the terms of such warranties, service contracts and product agreements in
respect of any of the Flight Equipment.
CLAUSE FOURTH.
All casualty insurance policies maintained with respect to the Flight
Equipment pursuant to this Chattel Mortgage, the Lease or any other Permitted
Lease (excluding, however, the Excluded Amounts).
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CLAUSE FIFTH.
All monies deposited from time to time with the Mortgagee pursuant to
Section 2.1 hereof.
CLAUSE SIXTH.
All records, logs, manuals and documents or other materials of any
kind relating to the condition, use, location, maintenance of or repairs or
overhauls to all or any part of the Flight Equipment.
CLAUSE SEVENTH.
All right, title and interest of the Mortgagor in, to and under the
Second Amended and Restated Lease Agreement, as amended by the Third Amendment
to Lease dated as of May 7, 1997 all as more particularly described in Annex I
(including its rights under the Guaranty) and any other Permitted Lease (as
hereinafter defined) or other arrangement for the operation of all or any part
of the Flight Equipment, including but not limited to, the Mortgagor's right,
title and interest in and to all of the monies due and to become due to the
Mortgagor thereunder (however, except as expressly provided herein, Mortgagee
assumes none of the Mortgagor's obligations thereunder), excluding only the
Excluded Amounts (as hereinafter defined), and Mortgagor's right to compel
performance of all the Lessee's or any other Permitted Lessee's obligations
thereunder, including all rights under Section 1110 of the Bankruptcy Code of
the United States or any subsequently enacted statutes of similar import, and
together with all general intangibles and contract rights related thereto,
including the right of Mortgagor to demand, receive and retain and compel
payment of all rents, issues, proceeds, properties, revenues and other income
derived from the Flight Equipment, including casualty insurance proceeds, but
excluding the Excluded Amounts and all rights of the Mortgagor to exercise any
election or option or to make any decision or determination or to give or
receive any notice, consent, waiver or approval or to take any action under or
in respect of any such document or to accept surrender or redelivery of any item
of Flight Equipment or any part thereof, as well as all the rights, powers and
remedies on the part of the Mortgagor arising out of any Lease Event of Default.
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CLAUSE EIGHTH.
All Proceeds, products, accessions, rents, profits, income, benefits,
substitutions, renewals and replacements of and to any of the Property of the
Mortgagor described in the preceding Clauses (including, without limitation, all
causes of action, claims and warranties now or hereafter held by the Mortgagor
in respect of any of the items listed above) and to the extent related to any
Property described in said clauses or such Proceeds, products and accessions,
all books, correspondence, credit files, records, invoices and other papers,
including without limitation all tapes, cards, computer runs and other papers
and documents in the possession or under the control of the Mortgagor or any
computer bureau or service company from time to time acting for the Mortgagor.
Title to or a Lien upon all property mortgaged hereby, or intended to
be, and which is hereafter acquired by the Mortgagor or to which it may at any
time hereafter be, in any manner, entitled at law or in equity, and required to
be subjected hereto or intended so to be, shall vest in the Mortgagee, under the
terms and conditions of this Chattel Mortgage, forthwith upon acquisition
thereof by the Mortgagor, and such property shall be as fully embraced within
the provisions of this Chattel Mortgage and subject to the Lien hereof as if
such property were now owned by the Mortgagor and were specifically described
herein and mortgaged hereby.
EXCLUDING, HOWEVER, IN ALL CASES, EXCLUDED AMOUNTS (all such property, rights
and privilege, excluding Excluded Amounts, collectively, the "Mortgaged
Property").
TO HAVE AND TO HOLD, all and singular said property unto the
Mortgagee, its successors and assigns, as security as aforesaid.
All of the Mortgaged Property shall secure all of the Obligations.
IT IS HEREBY COVENANTED AND DECLARED by and between the parties hereto
and their respective successors and assigns that the terms upon which the
Mortgaged Property shall be held, used and operated are as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1 For all purposes of this Chattel Mortgage, unless the
context otherwise requires:
"747 Aircraft" the Boeing Model 747-273C Aircraft bearing
manufacturer's serial number 20651 and FAA Registration No. N471EV, together
with two Xxxxx & Xxxxxxx JT9D-7J aircraft engines bearing manufacturer's serial
numbers 662205 and 662254, and two Xxxxx & Whitney JT9D-7F aircraft engines
bearing manufacturer's serial numbers 685607 and 689542, as more fully described
in Granting Clause First hereof.
"DC-9 Aircraft" the three XxXxxxxxx Xxxxxxx DC-9-33F Aircraft bearing
manufacturer's serial number 47191, 47194 and 47279 and FAA Registration No.
N933F, N944F and N945F, respectively, together with six Xxxxx & Whitney JT8D-9A
aircraft engines bearing manufacturer's serial numbers 665815, 678072, 666937,
653895, 666348 and 656041, as more fully described in Granting Clause First
hereof.
"Airlines" Evergreen International Airlines, Inc., an Oregon
corporation, having its principal place of business and chief executive office
at 0000 Xxxxx Xxxx Xxxx, XxXxxxxxxxx, Xxxxxx 00000-0000; Telephone No.:(503)
000-0000; Telefax No.: (000) 000-0000.
"Aircraft Engines", "appliances" and "snare parts" shall have the
respective meanings given to these terms in the Transportation Code as in effect
on the date of this instrument.
"Chattel Mortgage" shall mean this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more
instruments supplementary or amendatory hereto and which are executed by the
Mortgagor.
"Closing Date" shall mean the date the Loan is advanced under the Loan
Agreement.
"Collateral" shall mean all property which at the time of any
determination is subject to a Lien in favor of the Mortgagee, granted by the
Mortgagor under this Chattel Mortgage or by the Owner Participant under the
Beneficial Interest Security Agreement.
"Default" or "Event of Default" shall have the meanings ascribed to
such terms in Schedule I hereto.
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"Engine" or "Engines" shall mean any or all of the Engines which are
part of the Flight Equipment.
"Event of Loss" with respect to the Airframe or any Engine shall have
the meaning given such term in the Lease.
"Excluded Amounts" shall mean (i) indemnity or similar payments paid
or payable by Lessee to Mortgagor, any affiliate of Mortgagor or any director,
officer, employee, representative or agent of Mortgagor or any such affiliate,
pursuant to the terms of the Lease, (ii) proceeds of public liability insurance
in respect of the Mortgaged Property payable as a result of insurance claims
made, or losses suffered, by Mortgagor, any affiliate of Mortgagor or any
director, officer, employee, representative or agent of Mortgagor or any such
affiliate, (iii) proceeds of insurance maintained with respect to the Mortgaged
Property by Mortgagor or any such affiliate and not required under any other
Loan Document, (iv) Rent payable in respect of the DC-9 Aircraft (other than
Rent Mortgagor causes Lessee to pay in order to retain quiet enjoyment to the
DC-9 Aircraft in accordance with the second paragraph of the Repayment Schedule
attached to the Loan Agreement); (v) any interest paid or payable on any amounts
described in clauses (i) through (iv) of this definition, and (vi) the proceeds
from the enforcement of the payment of any amount described in clauses (i)
through (iv) of this definition.
"Federal Aviation Act" shall mean Title 49 of the Unites States Code
(which, among other things, recodified the Federal Aviation Act of 1958 as
amended to the time of such recodification), as amended.
"Federal Aviation Administration" or "FAA" shall mean the Federal
Aviation Administration provided for in the Department of Transportation Act of
1966, as in effect on the date of this Chattel Mortgage and as modified or
amended hereafter, or any successor or substituted governmental authority at the
time having jurisdiction over the Flight Equipment.
"Flight Equipment" shall have the meaning ascribed to such term in the
granting Clause Second hereof.
"Guarantor" Evergreen International Aviation, Inc., an Oregon
corporation, having its principal place of business and chief executive office
at 0000 Xxxxx Xxxx Xxxx, XxXxxxxxxxx, Xxxxxx 00000-0000; Telephone No.: (503)
000-0000; Telefax No.: (000) 000-0000.
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"Guaranty" the Guaranty and Subordination Agreement dated as of the
Closing Date to be entered into by the Guarantor for the benefit of the
Mortgagor.
"Lease" shall mean the Second Amended and Restated Lease Agreement,
dated as of 1996, between Borrower and Lessee, as more particularly described in
Annex I, and as amended by the Third Amendment to Lease.
"Lease Event of Default" shall mean an Event of Default, as defined in
the Lease, or in the event any other Permitted Lease is in place with respect to
an Aircraft, an event of default, or the equivalent thereof, under any such
Permitted Lease.
"Lessee" shall mean Airlines.
"Lien" shall mean any mortgage, pledge, lien, charge, encumbrance,
option, security interest or lease (including any conditional sale agreement,
equipment trust agreement, or other title retention agreement) or right or claim
of any person, whether voluntary or involuntary in nature.
"Loan" shall mean the principal amount of the loan made by the
Mortgagee pursuant to the Loan Agreement, which is outstanding from time to time
and due the Mortgagee under the Loan Agreement and the Note.
"Loan Agreement" shall mean that certain Secured Loan Agreement dated
as of May 8, 1997 between Mortgagor and Mortgagee.
"Loan Documents" shall mean collectively, the Loan Agreement, the
Note, this Chattel Mortgage, the Third Amendment to Lease, and all other
documents executed in connection with each of the foregoing agreements or
contemplated thereby or the transactions related thereto.
"Loan Term" shall mean the period commencing on the Closing Date
through and including that date which shall be the earlier of: (i) May 7, 2005,
or (ii) the date on which the Loan becomes payable in full under the provisions
of Paragraph 7 or 8 of the Loan Agreement.
"Mortgagor Order" and "Mortgagor Request" shall mean, respectively, a
written order or request signed in the name of the Mortgagor by an authorized
officer of the Mortgagor and delivered to the Mortgagee in accordance with the
terms hereof.
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"Note" shall mean the Promissory Note dated the Closing Date issued by
the Mortgagor to the Mortgagee pursuant to the terms of the Loan Agreement.
"Obligations" shall have the meaning set forth in Paragraph (B) of the
recitals.
"Officer's Certificate" shall mean a certificate signed by an
authorized officer of the Mortgagor and delivered to the Mortgagee.
"Owner Participant" collectively, 747, Inc., an Oregon corporation,
Xxxxxxx X. Xxxxx, a natural person, and Xxxx, Xxxxxxxxx Inc., a Nevada
corporation, with respect to the 747 Aircraft, and 747, Inc., with respect to
the DC-9 Aircraft.
"Parts" shall mean any and all appliances, parts, instruments,
appurtenances, accessions, furnishings, modules, avionics and other equipment of
whatever nature which may from time to time be incorporated or installed in or
attached to the Airframe or any Engine.
"Permitted Lease" shall mean the Lease, any Permitted Sublease, or any
other lease relating to the Aircraft that the Mortgagee has consented to in
writing.
"Permitted Lessee" shall mean a lessee under any Permitted Lease.
"Permitted Liens" shall mean:
(i) materialmen's, mechanics', workmen's, repairmen's, employees' or
other like Liens arising in the ordinary course of Mortgagor's, Lessee's or any
Permitted Sublessee's business securing obligations that are not overdue for a
period of more than thirty (30) days or are being contested in good faith by
appropriate proceedings, so long as during such 30-day period there is not, or
such proceedings do not involve, any material risk of the sale, forfeiture or
loss of the Airframe or any Engine or any interest therein;
(ii) Liens arising out of any judgment or award against Mortgagor,
Lessee (or any Permitted Sublessee), unless the judgment secured shall not,
within thirty (30) days after the entry thereof, have been discharged, vacated,
reversed or execution thereof stayed pending appeal or shall not have been
discharged, vacated or reversed within thirty (30) days after the expiration of
such stay, so long as during any such 30-day period there is not, or any such
judgment or award does not involve, any material risk of the sale, forfeiture or
loss of the Airframe or any Engine or any interest therein (unless Mortgagor,
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Lessee or any Permitted Sublessee shall have provided a bond or other security
in an amount and under terms reasonably satisfactory to Mortgagee);
(iii) any other Lien with respect to which Mortgagor, Lessee or a
Permitted Sublessee shall have provided a bond or other security in an amount
and under terms reasonably satisfactory to Mortgagee;
(iv) the Lease, any Permitted Sublease entered into pursuant to the
terms of the Lease and any other Permitted Lease, and any "Permitted Liens", as
that term is defined in the Lease; and
(v) the Lien of this Chattel Mortgage and the other Loan Documents.
"Permitted Sublease" shall mean a sublease permitted under the Lease.
"Permitted Sublessee" shall mean a sublessee under any sublease
permitted under the Lease.
"Proceeds" shall have the broadest meaning permissible under the
Uniform Commercial Code of Arizona and shall include all proceeds, whether such
proceeds are money, accounts, instruments, chattel paper, documents, equipment,
inventory, farm products, consumer goods, general intangibles, or deposit
accounts, and, in any event, shall include but shall not be limited to (i) all
rents, fees, lease payments, sublease payments and all other amounts due or
collected under or in respect of leases (including maintenance reserves and
return condition adjustments, if any, to the extent the same shall be the
property of the Mortgagor under the Lease or any other Permitted Lease),
subleases, all insurance proceed, judgments or awards relating to any of the
foregoing and all goods, documents, instruments, general intangibles, chattel
paper and accounts, wherever located, acquired with the cash proceeds of such
equipment or the proceeds thereof and (ii) any and all payments (in any form
whatsoever) made or due and payable to the Mortgagor, from time to time, in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Mortgaged Property by any governmental
body, authority, bureau or agency (or any person or entity acting under color of
governmental authority); excluding, however, the Excluded Amounts.
"Taxes" shall mean all present and future taxes, levies, imposts,
duties or charges of any nature whatever and wherever imposed, including,
without limitation, value added taxes or similar taxes and any franchise,
transfer, sales, use, business, occupation, excise, personal property, real
property, stamp or other tax imposed by any national or local taxing or fiscal
authority or agency, together with any penalties,
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additions to tax, fines or interest thereon, excluding, however, any and all
taxes imposed upon or measured by the income, receipts, earnings and profits or
net worth of the Mortgagee; and "tax" and "taxation" shall be construed
accordingly.
"Third Amendment to Lease" shall mean the Third Amendment to Lease
Agreement, dated the Closing Date, between Mortgagor and Mortgagee.
"Transaction Documents" shall mean the Loan Documents, the Trust
Agreement, the Guaranty and the Lease.
ARTICLE II
CASH COLLATERAL AND SECURITY DEPOSIT
SECTION 2.1 A. Cash Collateral. All monies received by the Mortgagee
as proceeds of casualty insurance upon any part of the Mortgaged Property and
all monies elsewhere herein provided to be held and applied under this Section,
and all monies, if any, required to be paid to the Mortgagee hereunder, whose
disposition is not elsewhere herein otherwise specifically provided for (all
such monies being hereinafter sometimes called the "Cash Collateral"), shall be
held by the Mortgagee and applied by the Mortgagee from time to time as provided
herein and in the Loan Agreement. Unless otherwise expressly set forth herein to
the contrary, Mortgagee shall have no obligation to segregate Cash Collateral.
B. Proceeds of Insurance Used for Repair. Provided an Event of Default
shall not have occurred and be continuing, and subject to the terms and
provisions of the Lease, to the extent that any Cash Collateral is the proceeds
of casualty insurance upon any part of the Mortgaged Property not subject to an
Event of Loss, the same may be withdrawn by the Mortgagor and shall be paid by
the Mortgagee, upon Mortgagor Order, (a) to reimburse the Mortgagor for, and up
to an amount not exceeding, expenditures made to repair and/or restore the
property damaged as required hereunder, but only upon receipt by the Mortgagee
of (1) a Mortgagor Request for the withdrawal and payment of specified proceeds
of insurance then included in the Cash Collateral, and (2) an Officer's
Certificate, dated not more than five days prior to the application for such
withdrawal, stating that expenditures have been made by the Mortgagor or Lessee
in a specified amount for one or more of the purposes aforesaid, which shall be
briefly described, and also stating that no part of such expenditures has been
or is then being used in any other previous or then pending application, as the
basis for the withdrawal of any Cash Collateral from the Mortgagee hereunder; or
(b) directly to the vendor or contractor who has provided or will provide parts
and/or labor, including, without
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limitation, for any down payments, advance, deposits or other amounts payable in
respect of equipment, parts, services or repairs provided or rendered or to be
provided or rendered (including by Evergreen Air Center, Inc., or other
affiliates of the Owner Participants or the Lessee, as long as such terms are no
less favorable than would be available from unrelated third parties), specified
proceeds of insurance then included in the Cash Collateral, upon receipt by the
Mortgagee of a Mortgagor Request for withdrawal and payment of such insurance
proceeds and upon receipt by Mortgagee of an invoice for payment for such labor
or parts used to repair the Flight Equipment, and for which an insurance payment
has been made to Mortgagee.
SECTION 2.2 Cash Collateral under the Lease. Notwithstanding anything
to the contrary contained in this Section 2, any amount held by the Mortgagee as
assignee of the Mortgagor's rights to payments by the Lessee pursuant to the
Lease shall be held, applied and paid over by the Mortgagee as provided in the
Lease and, without limiting the foregoing, the Mortgagee hereby agrees for the
benefit of Lessee to perform the duties of the Mortgagor under the Lease in
respect of such amounts.
ARTICLE III
PARTICULAR COVENANTS OF THE MORTGAGOR
The Mortgagor covenants, agrees, represents and warrants in particular
as hereinafter in this Article set forth:
SECTION 3.1 Warranty and Covenant of Title. At the time of the
execution and delivery of this instrument, the Mortgagor owns the Flight
Equipment subject to no lien, charge, encumbrance, option, title retention
agreement or security interest, except Permitted Liens and Liens that will be
released concurrently with the Closing, and has full power and authority to
grant, bargain, sell, transfer, convey and mortgage, and give a security
interest in, the Flight Equipment in the manner and form as set forth in this
Chattel Mortgage. Except as set forth in the foregoing, the Mortgagor is and
shall remain the legal owner, free and clear of all mortgages, security
interests, liens, charges, encumbrances, title retention agreements, and options
(except for Permitted Liens) of the Flight Equipment.
The Mortgagor hereby does and will forever warrant and defend upon
direction of an Owner Participant the title to and possession of the Mortgaged
Property against the claims and demands of all persons whomsoever except the
claims and demands under the Permitted Liens and at all times upon direction of
an Owner
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Participant keep the Lien and security interest granted herein with respect to
the Mortgaged Property, at the Mortgagor's expense, a duly perfected first
priority security interest in and Lien upon the Flight Equipment, and a duly
perfected first priority security interest in and Lien upon all of the other
Mortgaged Property as constituted from time to time, superior to the rights of
all third parties (except the rights of Lessee under the Lease and Permitted
Liens) to the fullest extent permitted by applicable law, and shall upon
direction of an Owner Participant obtain any authorization, approval, license,
or consent of any competent governmental or judicial authority, including,
without limitation, the Federal Aviation Administration Aircraft Registry which
may be or become necessary in order to obtain the full benefits of this Chattel
Mortgage and all rights and powers granted or to be granted herein.
SECTION 3.2 Recording. (A) The Mortgagor will bear the expense of and
be responsible for recording and re-recording, registering and re-registering
and filing and re-filing this Chattel Mortgage and each and every supplemental
chattel mortgage and such other financing statements or other instruments from
time to time as may be reasonably requested by the Mortgagee and provided to
Mortgagor in execution form in all such jurisdictions and offices as the
Mortgagee shall from time to time request in order that: (a) the Lien hereof as
a first priority lien on the Flight Equipment and on all of the other Mortgaged
Property, subject to Permitted Liens, (b) the security for the Obligations, and
(c) the rights and remedies of the Mortgagee, may be established, confirmed,
maintained and protected; and the Mortgagor will furnish upon request to the
Mortgagee evidence reasonably satisfactory to the Mortgagee of every such
recording, registering and filing which is not filed, recorded or registered by
Mortgagee. The foregoing includes, without limitation, the execution and
delivery by the Mortgagor of all documents reasonably necessary to perfect
Mortgagee's rights as secured party and Mortgagor's rights as lessor under the
Lease.
(B) The Mortgagor hereby appoints Mortgagee as its irrevocable
attorney in fact (said agency coupled with an interest) to take all such action
and execute all such documents in Mortgagee's own name or in the name of the
Mortgagor that is necessary to carry out the purposes of Paragraph 3.2(A).
SECTION 3.3 To Keep in Effect Authorizations; To Pay Taxes. (A) The
Mortgagor will obtain and maintain, or cause to be obtained or maintained, in
full force and effect, any authorization, approval, license, or consent of any
governmental or judicial authority, which may be or become necessary in order to
obtain the full benefits of this Chattel Mortgage and all rights and remedies
granted or to be granted herein, and will not create or suffer to exist any Lien
upon the Mortgaged Property or any part thereof or upon the income therefrom
other than Permitted Liens; and the Mortgagor will from
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time to time pay or cause to be paid as they become due and payable all taxes,
assessments and governmental charges lawfully levied or assessed or imposed upon
the Lien of the Mortgagee so that the Lien of this Chattel Mortgage shall at all
times be wholly preserved at the cost of the Mortgagor and without expense to
the Mortgagee except to the extent being contested in good faith by appropriate
proceedings and adequate reserves for which are being maintained; and the
Mortgagor will not suffer any other matter or thing whatsoever whereby the Lien
of or security interest created by this Chattel Mortgage might be impaired in
any material respect.
(B) With respect to Mortgagee's obligations under Section 3.3(A): (i)
to the extent the Lessee performs such obligation, such obligations shall be
deemed to have been performed; (ii) WTC shall have no obligation in its
individual capacity to perform any such obligation; and (iii) to the extent the
Lessee has not performed such obligation, Mortgagor shall perform such
obligation only to the extent instructed by an Owner Participant and shall
execute only such documents as shall have been provided to it in execution form.
SECTION 3.4 Indemnification. The Mortgagor shall, or shall cause
Lessee to, assume liability for and indemnify, protect, save, and keep harmless
the Mortgagee, its officers, directors, agents, and employees from and against
any and all liabilities, losses, damages, taxes (excluding, however, any and all
taxes imposed upon or measured by the income of the Mortgagee), claims, actions,
suits, reasonable costs and expenses of whatsoever kind, including, without
limitation, reasonable legal fees and disbursements, imposed on, incurred by, or
asserted against the Mortgagee, its officers, directors, agents and employees in
any way relating to or arising out of the purchase, ownership, delivery,
possession, use, operation, condition, performance, quality, suitability,
airworthiness, maintenance, registration, loss, confiscation, seizure,
requisition, lease, sale, or other disposition of the Mortgaged Property or any
part thereof, or this Chattel Mortgage or any other Loan Document or any of the
instruments or agreements to be entered into by the parties pursuant hereto or
thereto.
SECTION 3.5 To Maintain Flight Equipment. (A) The Mortgagor will at
all times maintain, preserve and keep, at its own cost and expense, all of the
Flight Equipment as from time to time constituted and every part thereof in good
order and repair (ordinary wear and tear excepted), in accordance with standards
of United States airlines engaged in international flights, in conformity with
FAA regulations and local aviation authority requirements, or will cause such
Mortgaged Property to be so maintained, preserved and kept, without cost or
expense under this Chattel Mortgage to the Mortgagee. The Mortgagor will from
time to time make, or cause to be made, all needed and proper repairs to the
Flight Equipment in order to comply with such standards
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at a maintenance repair station approved by the FAA and acceptable to Mortgagee,
and obtain and maintain in full force and effect and in good order all licenses,
permits, certificates, registrations or other documents required by any
insurance policy or any governmental authority having jurisdiction regarding the
Flight Equipment. The Mortgagor will replace or will cause to be replaced,
without expense to the Mortgagee, all or any part of the Flight Equipment
(including, without limitation, any Engine) that may be retired (whether by
sale, expropriation, wearing out, loss or destruction or other cause), or may be
in any way rendered unfit for use, with replacement property of comparable
grade, quality and utility, which replacement property shall be in the same or
better serviceable condition by standards of the FAA as the unit so retired or
rendered unfit for use assuming such replaced property was maintained in
accordance with the provisions hereof and will, with respect to replacement
engines, execute and deliver to Mortgagee a Supplemental Chattel Mortgage and
such other documents as may be necessary to accord Mortgagee a first priority
Lien under this Chattel Mortgage with respect thereto (subject to Permitted
Liens) and to subject such replacement property to the Lien of this Chattel the
Mortgaged Property. The Mortgagor shall not cannibalize or part out any Aircraft
or any Engine, or attempt to do so.
(B) Upon request of the Mortgagee made no more frequently than once
during every 12-month period during the Loan Term, the Mortgagor shall provide
to the Mortgagee an audit report prepared by the Mortgagor with respect to the
Flight Equipment, clearly specifying the replacement of major parts and/or
components of the Flight Equipment from that which existed on the date of this
Chattel Mortgage (as to the first such report) or as of the date of the
preceding audit report (as to each subsequent report), with respect to the
Flight Equipment. Such audit report shall also clearly note all parts and/or
components of the Flight Equipment, as then constituted, which constitute
leased, borrowed, loaned or exchanged parts and components. Thereafter, or at
any time requested by the Mortgagee, the Mortgagor shall execute, deliver,
and/or file at its own expense such Supplemental Chattel Mortgages reasonably
satisfactory in form and substance to the Mortgagee or such other instruments as
the Mortgagee may reasonably request in order to confirm or give further
assurance of the Lien hereof with respect to any item of property so used in
replacement and described in such report.
(C) The Mortgagor will at all times comply or cause compliance with
all lawful orders, rules and regulations of governmental authorities having
jurisdiction with respect to any part of the Mortgaged Property the
noncompliance with which would have a material adverse effect on the condition
of any Flight Equipment, the business of Mortgagor or the perfection or priority
of this Chattel Mortgage or any of Mortgagee's rights or remedies under any Loan
Document. The Mortgagor will advise the Mortgagee of the receipt by the
Mortgagor of any notice from the Administrator of the FAA as to
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any violation of or failure to comply with or any order, rule or regulation
thereof relating to the Flight Equipment. Mortgagor shall, at any time and from
time to time, at Mortgagee's request, promptly furnish to Mortgagee information
as to the maintenance status of the Flight Equipment in such detail as Mortgagee
shall reasonably require.
(D) The provisions of Section 3.5(A) and (C) shall apply only during
either of the following times: (i) when the Lease or any Permitted Lease is no
longer in effect; or (ii) during the continuance of a Lease Event of Default
arising as a result of the Lessee's failure to comply with its obligations
thereunder regarding the maintenance of the Flight Equipment.
(E) With respect to Mortgagee's obligations under Section 3.5(A), (B)
and (C): (i) to the extent the Lessee performs such obligations, such
obligations shall be deemed to have been performed; (ii) WTC shall have no
obligation in its individual capacity to perform any such obligation; and (iii)
to the extent the Lessee has not performed such obligation, Mortgagor shall
perform such obligation only to the extent instructed by an Owner Participant
and shall execute only such documents as shall have been provided to it in
execution form.
SECTION 3.6 To Insure. The Mortgagor shall at all times procure and
maintain, or cause to be procured and maintained, on the Flight Equipment,
without liability and at no cost to the Mortgagee, policies of insurance in such
form, of such type and with insurers reasonably satisfactory to the Mortgagee.
A. Proceeds. All proceeds of insurance upon any part of the Mortgaged
Property paid to the Mortgagee shall be held and paid over or applied by the
Mortgagee as provided in Section 2.1.
B. Insurance under the Lease. Notwithstanding anything to the contrary
contained herein, during any time when any Lease or any Permitted Lease shall be
in effect, so long as the insurance provisions thereof are being complied with,
the obligations of the Mortgagor pursuant to the provisions of this Section 3.6
shall be deemed to be complied with; provided, however, that Mortgagor shall, in
any case, be obligated to maintain the amount of "All Risk" hull insurance in an
amount not less than the Flight Equipment's full commercial value but, in any
case, in an amount not less than the Mortgagor's full financial obligation with
respect to the Flight Equipment to Mortgagee under the Loan Agreement. For the
avoidance of doubt, if the amounts of "All Risk" hull insurance required to be
maintained under the Lease are not sufficient to satisfy the condition set forth
in the proviso of the immediately preceding sentence, the
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Mortgagor shall maintain Total Loss Only Insurance or additional hull insurance
in an amount necessary to eliminate any shortfall in the amount of insurance
coverage.
(C) With respect to Mortgagee's obligations under Section 3.6(A): (i)
to the extent the Lessee performs such obligations, such obligations shall be
deemed to have been performed; (ii) WTC shall have no obligation in its
individual capacity to perform any such obligation; and (iii) to the extent the
Lessee has not performed such obligation, Mortgagor shall perform such
obligation only to the extent instructed by an Owner Participant and shall
execute only such documents as shall have been provided to it in execution form.
SECTION 3.7 Inspection by Mortgagee; Information. (A) The Mortgagor
will at all times maintain or cause to be maintained records adequate to
identify the Flight Equipment and to disclose its use, maintenance, condition
and the income generated to the Mortgagor through the use thereof. Mortgagor
shall, upon 24-hours' notice from Mortgagee, provide Mortgagee with all
information then available to Mortgagor regarding the location of the Mortgaged
Property. Mortgagor shall permit the Mortgagee or any representative designated
by Mortgagee: (a) at the times of the inspection referred to in clause (b) of
this sentence, to inspect the books of account, records, reports and other
papers of the Mortgagor related to the Mortgaged Property and to make copies and
extracts therefrom and Mortgagor will afford and procure a reasonable
opportunity to make any such inspection and the Mortgagor will furnish the
Mortgagee with any and all such other information and copies of documents and
print-outs of data related to the Mortgaged Property stored on any electronic or
data processing medium under the control of the Mortgagor as the Mortgagee may
reasonably request, with respect to any Mortgaged Property and the financial
records of the Mortgagor related to the Mortgaged Property and will permit
Mortgagee to discuss any of the foregoing with any officer or accountant of the
Mortgagor, all at such reasonable time and as often as may be reasonably
requested; and (b) subject to restrictions regarding non-interference with the
Lessee's operations contained in the Lease, (i) to inspect the Flight Equipment,
upon Mortgagee's reasonable request, once every 12 months during the Loan Term;
provided that Mortgagee shall provide not less than twenty (20) days prior
written notice of its intention to exercise (either by itself or by its
designate) such rights, and (ii) to inspect and appraise the Flight Equipment,
upon Mortgagee's reasonable request, at any time after the occurrence of an
Event of Default, or whenever there has been, in Mortgagee's reasonable
judgment, a material, adverse change in the condition of the Mortgaged Property
or in the financial condition of Mortgagor. All such inspections and appraisals
as are permitted in clause (b) of the previous sentence shall be at the
reasonable cost and expense of Mortgagor, shall be conducted by Mortgagee's
in-house technical representative or by an independent appraiser selected by
Mortgagee, in each case in the
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presence of a representative of Mortgagor. Mortgagee may require, and Mortgagor
shall permit, subject to restrictions regarding non-interference with the
Lessee's operations contained in the Lease, the Flight Equipment to be inspected
and appraised by an appraiser selected by Mortgagee at any time, at Mortgagors's
sole cost and expense; provided, that, unless an Event of Default has occurred
and is continuing, neither the Mortgagor nor the Lessee shall be obligated to
pay the cost and expense of more that one appraisal in each year; and provided
further, that, if in the course of such inspection a breach of Mortgagor's or
Lessee's obligations regarding maintenance hereunder or under the Lease,
respectively, is discovered, then Mortgagor shall pay for the costs of all
follow-up inspections.
(B) With respect to Mortgagee's obligations under Section 3.7(A): (i)
to the extent the Lessee performs such obligations, such obligations shall be
deemed to have been performed; (ii) WTC shall have no obligation in its
individual capacity to perform any such obligation; and (iii) to the extent the
Lessee has not performed such obligation, Mortgagor shall perform such
obligation only to the extent that the appropriate documentation is provided by
an Owner Participant and shall execute only such documents as shall have been
provided to it in execution form.
SECTION 3.8 Citizenship, etc. The Mortgagor is as of the date hereof
and will at all times remain a citizen of the United States as defined in 49
U.S.C. (S) 40102(15).
SECTION 3.9 Insignia. (A) The Mortgagor will plainly, distinctly and
conspicuously place and leave on the Airframe and each Engine, a plate, insignia
or other identification bearing the following words in letters of a size
reasonable under the circumstances and acceptable to the Mortgagee as follows:
Owned by and Leased from Wilmington Trust Company, as Owner Trustee,
as Lessor and Subject to a Perfected Security Interest in Favor of
FINOVA Capital Corporation
or bearing such other words as may be required under the terms of the Lease.
(B) With respect to Mortgagee's obligations under Section 3.9(A): (i)
to the extent the Lessee performs such obligations, such obligations shall be
deemed to have been performed; (ii) WTC shall have no obligation in its
individual capacity to perform any such obligation; and (iii) to the extent the
Lessee has not performed such obligation, Mortgagor shall perform such
obligation only to the extent instructed by an Owner Participant and shall
execute only such documents as shall have been provided to it in execution form.
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SECTION 3.10 Operation and Location of Mortgaged Property. (A) The
Mortgagor shall not operate the Flight Equipment or suffer the Flight Equipment
to be operated in violation of any provision of any insurance policy in effect
with respect to the Flight Equipment or in any jurisdiction where all of the
insurance required hereunder shall not remain in full force and effect or in
violation of any law, treaty, statute, rule, airworthiness directive, regulation
or order of any government or governmental authority (domestic or foreign)
having jurisdiction of the Mortgagee or the Flight Equipment or in violation of
any applicable airworthiness certificate, license or registration relating to
the Flight Equipment issued by any such government or governmental authority.
(B) The provisions of Section 3.10(A) shall apply to the Aircraft only
during either of the following times: (i) when the Lease or any Permitted Lease
is no longer in effect; or (ii) during the continuance of a Lease Event of
Default arising as a result of the Lessee's failure to comply with its
obligations thereunder regarding the operation and location of the Flight
Equipment.
(C) With respect to Mortgagee's obligations under Section 3.10(A): (i)
to the extent the Lessee performs such obligations, such obligations shall be
deemed to have been performed; (ii) WTC shall have no obligation in its
individual capacity to perform any such obligation; and (iii) to the extent the
Lessee has not performed such obligation, Mortgagor shall perform such
obligation only to the extent instructed by an Owner Participant and shall
execute only such documents as shall have been provided to it in execution form.
(D) Indemnification by U.S. Government in Lieu of Insurance.
Notwithstanding the provisions of this Section 3.10 or any other provisions of
this Agreement requiring insurance, Mortgagee agrees to accept, in lieu of
insurance against any risk with respect to the Flight Equipment, indemnification
from, or insurance provided by, any agency or instrumentality of the United
States against such risk in an amount which, when added to the amount of
insurance against such risk maintained by the Mortgagor (or by Lessee or any
Sublessee) with respect to the Flight Equipment, shall be at least equal to the
amount of insurance against such risk otherwise required by this Agreement.
SECTION 3.11 No Sale, Alteration or Modification. (A) Except as
expressly permitted in subsections 3.11(B) hereof or as permitted by the Lease,
Mortgagor shall not sell, lease, convey, transfer or encumber (other than with
Permitted Liens) or otherwise dispose of all or any part of the Mortgaged
Property or extend the duration of the Lease, or cause or permit another to do
any of the foregoing with respect to any of the Mortgaged Property, and shall
not, except any maintenance or
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improvements to the Flight Equipment in connection with any sale or lease
thereof as permitted by the Loan Agreement, modify or cause or permit any
modification to any of the Flight Equipment that would have a material effect
upon the value of the Flight Equipment. Except as otherwise permitted by the
Lease, Mortgagor shall not make or cause to be made or cause or permit another
to make any change or alteration in any registration, filing, or recordation of
any of the Flight Equipment from the registration, filing, or recordation
required by this Chattel Mortgage, or consent to the Flight Equipment being
operated by pilots other than those currently certified by the appropriate
governmental authorities.
(B) Notwithstanding anything to the contrary set forth in Section 3.11
(A) above, at any time and from time to time prior to expiration of the term of
the Lease, and provided that the Lease shall not have been declared in default
pursuant to the terms thereof, as to any Engine which the provisions of the
Lease permit to be replaced, the Mortgagor may direct the Mortgagee to execute
and deliver to or as directed in writing by the Mortgagor an appropriate
instrument releasing such Engine from the Lien of this Chattel Mortgage and the
Mortgagee shall execute and deliver such instrument as aforesaid, but only at
the cost and expense of the Mortgagor and only upon receipt by or deposit with
the Mortgagee of the following:
(i) a Mortgagor Request requesting such release and
describing the Engine so to be released which shall be identified by
the manufacturer's serial number;
(ii) proof reasonably satisfactory to Mortgagee that Lessee
has complied with all of the requirements set forth in Section 10(b)
of the Lease with respect to a replacement Engine;
(iii) Mortgagor shall deliver to the Mortgagee duplicate
executed original counterparts of all of the instruments and documents
delivered to Mortgagor as lessor under the Lease by Lessee in
compliance with the provisions thereof with respect to a replaced
Engine, and each executed counterpart of any Supplement thereto
subjecting such replacement Engine to the Lease shall have affixed
thereto the following legend:
LESSOR HAS ASSIGNED TO FINOVA CAPITAL CORPORATION CERTAIN OF ITS
RIGHT, TITLE AND INTEREST IN AND TO THIS LEASE SUPPLEMENT. TO THE
EXTENT, IF ANY, THAT THIS LEASE SUPPLEMENT
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CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM
COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION) NO
SECURITY INTEREST IN THIS LEASE SUPPLEMENT MAY BE CREATED THROUGH
THE TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER THAN THE
ORIGINAL EXECUTED COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE
COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY FINOVA
CAPITAL CORPORATION ON THE SIGNATURE PAGE THEREOF.
(iv) a Supplemental Chattel Mortgage subjecting such
replacement Engine to the Lien hereof;
(v) in opinion or opinions of counsel to the Mortgagor or
Lessee reasonably satisfactory to Mortgagee (which may be in-house
counsel) that all such replacement property has been validly subjected
to the Lien of this Chattel Mortgage and covered by the Lease as fully
and to the same extent as if such replacement property were initially
the subject of each thereof; and
(vi) an Officer's Certificate that Mortgagor will, after
consummation of the transactions contemplated by this paragraph
3.11(B) have good and marketable title to such replacement property
free of all Liens whatsoever except the Permitted Liens.
SECTION 3.12 As to the Lease Assigned Hereunder.
(A) All consents necessary for the assignment to Mortgagee of
Mortgagor's right, title and interest in and to the Lease have been obtained and
delivered to Mortgagee.
(B) The Lease is in full force and effect and no party thereunder is
in default in the performance of any obligation on its part to be performed
thereunder.
(C) Mortgagor will not permit the Lease or any material provisions
thereof to be amended nor any of Mortgagor's material rights or the other
party's material obligations thereunder to be waived without the prior, written
consent of Mortgagee, which consent shall not unreasonably be withheld, and will
promptly send to Mortgagee all notices or demands which Mortgagor shall be
permitted or required to send to any
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other party thereto under the provisions thereof or which Mortgagor receives
from such other party.
(D) Mortgagor will not grant a security interest in, or assign its
rights under, or permit a Lien to attach to its rights under the Lease other
than the assignment and Lien granted and vested under this Chattel Mortgage and
Permitted Liens.
ARTICLE IV
REMEDIES
SECTION 4.1 Event of Default. An Event of Default shall occur
hereunder if any event defined as an Event of Default on Schedule I hereto shall
occur.
SECTION 4.2 Remedies. Upon the occurrence and continuance of any Event
of Default, the Mortgagee may, at its option, do one, several, or all of the
following, as the Mortgagee, in its sole discretion, shall then elect:
(i) exercise all the rights and remedies granted to secured
parties by the provisions of the New York Uniform Commercial Code
(whether or not the Uniform Commercial Code is in effect in the same
form in the jurisdiction where Mortgagee's rights and remedies are
asserted) or under the provisions of any applicable law;
(ii) accelerate the entire principal balance then due and owing
under the Loan Agreement and this Chattel Mortgage, whereupon all such
amounts, accrued interest thereon, and all other amounts due and owing
hereunder and thereunder shall become immediately due and payable;
(iii) institute legal proceedings to foreclose upon and against
the security interest granted in and by this Chattel Mortgage and to
recover judgment for all amounts then due as set forth in subparagraph
(ii) of this Section 4.2;
(iv) institute legal proceedings for the specific performance of
any covenant or agreement herein contained or in the Loan Agreement or
in aid of the execution of any power herein granted and Mortgagee
shall be entitled as of right to the appointment of a receiver of all
or any part of the Mortgaged Property;
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(v) institute legal proceedings for the sale or otherwise for the
enforcement of any right, under the judgment of any court of competent
jurisdiction, of or concerning any of the Mortgaged Property;
(vi) personally, or by agents or attorneys, take possession of
all or any part of the Mortgaged Property and demand, xxx for, collect
or receive any money or property at any time payable or receivable on
account of or in exchange for, or make any compromise or settlement
deemed desirable with respect to, any of the Mortgaged Property or any
sum payable in connection therewith;
(vii) to the extent permitted by law, enter any place where the
Mortgaged Property may be found or where Mortgagee reasonably believes
some or all thereof may be kept and personally, or by agents or
attorneys, take possession of any part or all of the Mortgaged
Property without being responsible for loss or damage caused thereby
(other than gross negligence or willful misconduct), and sell or
dispose of all or any part of the same, free from any and all claims
of the Mortgagor or of any other party claiming by, through, or under
the Mortgagor, at law or in equity, at one or more public or private
sales; or
(viii) exercise, to the exclusion of all third parties and the
Mortgagor, all rights granted to the Mortgagor under the Lease.
Notwithstanding anything to the contrary in this Section 4.2, so long
as Mortgagor is paying the amounts specified in the second paragraph of the
Repayment Schedule, Mortgagee shall not exercise any rights and remedies
hereunder or at law against any DC-9 Aircraft; provided that Mortgagee may, at
any and all times after the occurrence, and during the continuance of any Event
of Default, exercise any and all other rights and remedies hereunder and at law,
including accelerating the principal due under the Loan Agreement and any and
all remedies against the 747 Aircraft; and provided, further, that, in the event
an Event of Default occurs as a result of the failure of the Mortgagor to pay
any such amounts, Mortgagee may then exercise any and all rights and remedies
hereunder and at law against the DC-9 Aircraft, including, without limitation,
the right to repossess and sell such Aircraft.
SECTION 4.3 Waiver of Bonds, etc. If Mortgagee seeks to take
possession of any or all of the Mortgaged Property or avail itself of any
provisional remedy by court process, the Mortgagor hereby irrevocably waives any
bonds and any surety or security required by any statute, court rule or
otherwise as an incident to such
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possession or remedy, and waives any demand for possession of the Mortgaged
Property prior to the commencement of any suit or action to recover same.
SECTION 4.4 Waiver of Appraisement. The Mortgagor agrees, to the full
extent that it may lawfully so agree, that neither it nor anyone claiming
through or under it will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension or redemption law now or hereafter in
force in any locality where any property subject to the Lien hereof may be
situated, in order to prevent, hinder or delay the enforcement or foreclosure of
this Chattel Mortgage, or the absolute sale of the Mortgaged Property or any
part thereof, or the final and absolute putting into possession thereof,
immediately after such sale, of the purchasers thereof; and the Mortgagor, for
itself and all who may at any time claim through or under it, hereby waives, to
the full extent that it may be lawful so to do, the benefit of all such laws,
and any and all right to have any of the properties or assets comprising the
Mortgaged Property marshaled upon any such sale, and agrees that the Mortgagee,
or any court having jurisdiction to foreclose the Lien hereof, may sell the
Mortgaged Property in its entirety or in such parcels as the Mortgagor may
determine.
SECTION 4.5 Multiple Sales. The power of sale hereunder shall not be
exhausted by one or more sales, and the Mortgagee may from time to time adjourn
any sale to be made pursuant hereto. The Mortgaged Property need not be present
at the time and place of sale.
SECTION 4.6 Delivery of Mortgaged Property. If the Mortgagee shall
demand possession of the Mortgaged Property or any part thereof pursuant to this
Chattel Mortgage, or any records, including print-outs of data stored on any
electronic or data processing medium, relating to the Mortgaged Property, the
Mortgagor shall, at its own expense, forthwith cause such Mortgaged Property or
any part thereof or any such records designated by the Mortgagee to be assembled
and made available and/or delivered to the Mortgagee at any place reasonably
designated by the Mortgagee in the United States.
SECTION 4.7 Notices. In addition to any other notices required by law,
the Mortgagee shall give to Mortgagor at least twenty (20) days prior written
notice of each public sale or any date after which a private sale or other
intended disposition hereunder shall occur, and the Mortgagor hereby covenants
and agrees that a notice, which shall be sent in accordance with the provisions
of Section 7.1 hereof, at least twenty (20) days before the date of any such act
shall be deemed to be commercially reasonable notice for such act within the
meaning of Section 9-504 of the Uniform Commercial Code and, specifically,
reasonable notification of the time and place of any
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public sale hereunder and reasonable notification of the time after which any
private sale or other intended disposition to be made hereunder is to be made.
SECTION 4.8 Mortgagee Repairing and Managing Mortgaged Property. Upon
every such taking of possession, the Mortgagee may, but shall have no obligation
to, from time to time, at the expense of the Mortgagor, make all such repairs,
replacements, alterations, additions and improvements to and of the Mortgaged
Property as the Mortgagee may reasonably deem proper to protect its interests
hereunder. In each such case, the Mortgagee shall have the right to manage and
control the Mortgaged Property and to carry on the business and to exercise all
rights and powers of the Mortgagor in respect thereof as the Mortgagee shall
deem best, including the right to enter into any and all such agreements with
respect to the leasing and/or operation of the Mortgaged Property or any part
thereof as the Mortgagee may see fit; and the Mortgagee shall be entitled to
collect and receive all rents, issues, profits, revenues and other income of the
same and every part thereof. Such rents, issues, profits, revenues and other
income shall be applied to pay the expenses of holding and operating the
Mortgaged Property and of conducting the business thereof, and of all
maintenance, repairs, replacements, alterations, additions and improvements, and
to make all payments which the Mortgagee may be required or may elect to make,
if any, for taxes, assessments, insurance and other proper charges upon the
Mortgaged Property or any part thereof, and all other payments which the
Mortgagee may be required or authorized to make under any provision of this
Chattel Mortgage. The remainder of such rents, issues, profits, revenues and
other income shall be applied only in accordance with Section 4.10 hereof.
SECTION 4.9 Delivery to Purchaser. Upon the completion of any sale
under this Article, the Mortgagor shall deliver all of the property sold to the
purchaser or purchasers at such sale on the date of sale, or within a reasonable
time thereafter if it shall be impractical to make immediate delivery, but in
any event full title and right of possession to such property shall pass to such
purchaser or purchasers forthwith upon the completion of such sale.
Nevertheless, if so requested by the Mortgagee or by any purchaser, the
Mortgagor shall confirm any such sale or transfer by executing and delivering to
such purchaser all proper instruments of conveyance and transfer and releases as
may be designated in any such request and provided in execution form.
Every such sale shall operate to divest all right, title, interest,
claim and demand whatsoever of the Mortgagor and any person claiming such
interest by, through or under the Mortgagor, in and to the property so sold, and
shall be a perpetual bar, both at law and in equity, against the Mortgagor and
all such persons and their respective successors or assigns.
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SECTION 4.10 Application of Proceeds. The proceeds of any sale, rental
or other use of the Mortgaged Property, or any part thereof, under this Article,
together with any other sums then held by the Mortgagee, as part of the
Mortgaged Property, shall be applied as follows:
A. First. To the payment of the costs and expenses of such sale
and the exercise of Mortgagee's remedies hereunder, including brokers'
fees or sales commissions, a reasonable compensation to the
Mortgagee's agents, legal fees of Mortgagee's attorneys and counsel,
and all other charges, expenses, liabilities and advances incurred or
made by the Mortgagee in connection therewith, and to the payment of
all taxes, assessments or Liens, if any, prior to the Lien of this
Chattel Mortgage, except any taxes, assessments or Liens subject to
which such sale shall have been made;
B. Second. To the payment of amounts outstanding under the Loan
Agreement; and
C. Third. Any remaining surplus shall be paid to Mortgagor.
SECTION 4.11 Mortgagee May Purchase. At any public sale under this
Article, to the extent permitted by applicable law the Mortgagee or its nominee
may bid for and purchase the property offered for sale, and, upon compliance
with the terms of sale, may hold, retain and dispose of such property without
further accountability therefor. Mortgagee need not be present at such sale. For
the purpose of making payment for the Mortgaged Property or any part thereof so
purchased, any claim for any amounts owing under the Note, the Loan Agreement or
hereunder may be used by Mortgagee as a credit against the purchase price.
SECTION 4.12 Right to Possession. The right of the Mortgagee to take
possession of and sell or operate and manage the Mortgaged Property in
compliance with the provisions of this Chattel Mortgage shall not be adversely
affected by the provisions of the Federal Bankruptcy Code as at any time amended
or of any provision of any succeeding act to the same effect.
SECTION 4.13 Remedies Cumulative, etc. (A) Each right, power, and
remedy specifically given to the Mortgagee herein, or otherwise existing shall
be cumulative and shall be in addition to every other right, power, and remedy
specifically given herein, or in the Loan Agreement or now or hereafter existing
at law, in equity, or otherwise; and each right, power and remedy, whether
specifically given herein or under the Loan Agreement or otherwise existing, may
be exercised from time to time and as
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often and in such order as may be deemed expedient by the Mortgagee; and the
exercise of any right, power or remedy shall not be construed to be a waiver of
the right to exercise at the same time or thereafter any other right, power or
remedy.
(B) No delay or omission by the Mortgagee in the exercise of any right
or power, or in the pursuance of any remedy, shall impair any such right, power,
or remedy or be construed to be a waiver of any default on the part of the
Mortgagor or to be an acquiescence therein.
(C) No waiver by the Mortgagee of any breach or Default or Event of
Default by the Mortgagor under this Chattel Mortgage shall be deemed a waiver of
any other previous breach or default or any thereafter occurring.
(D) The invalidity of any remedy in any jurisdiction shall not
invalidate such remedy in any other jurisdiction. The invalidity or
unenforceability of any of the remedies herein provided in any jurisdiction
shall not in any way affect the right to the enforcement in such jurisdiction or
elsewhere of any of the other remedies herein provided.
SECTION 4.14 Mortgagee's Right to Perform and Incur Expenses. At any
time and from time to time after an Event of Default has occurred, if the
Mortgagor fails to perform or fulfill or is not the performing or fulfilling any
of its undertakings or obligations contained herein, Mortgagee shall have the
right, but shall not be obligated: (i) to effect such performance or compliance
and (ii) to incur such expenses relative thereto or to the enforcement of
Mortgagee's rights as against, or the preservation, protection, reconditioning,
storage or sale of, the Mortgaged Property including, but without limitation,
such sums as are specified in Section 4.8 and 4.10 FIRST hereof. The amount of
any such expenses and other reasonable costs of Mortgagee incurred as
hereinabove provided shall become payable by the Mortgagor to the Mortgagee as
of the date on which Mortgagee shall pay the same, together with interest
thereon from said date of payment at the rate of 2% over the Interest Rate
specified in the Note (but in no event higher than the highest rate permitted by
applicable law), until the same shall be repaid.
SECTION 4.15 Advances Are Secured. All such costs and expenses
incurred shall become part of the Mortgagor's obligations and shall become part
of the indebtedness secured under this Chattel Mortgage. The Mortgagee shall
have the right (but shall not be obligated) to use and apply any Cash Collateral
at any time held by it for the repayment of all such advances, costs or
expenses. However, no such use of any Cash Collateral, nor the making by
Mortgagee of any advance in payment of any such expense,
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shall relieve the Mortgagor from any Default hereunder or violate any provision
of the Lease.
SECTION 4.16 Agency. The Mortgagor hereby appoints Mortgagee, such
appointment being immediately and without further notice or action effective
upon the occurrence of an Event of Default, as the Mortgagor's irrevocable
attorney-in-fact and agent (such appointment being coupled with an interest)
either in the Mortgagee's own name or in the name of the Mortgagor, to (i) incur
and to pay the costs and expenses aforesaid; (ii) make claim for, collect,
compromise and bring suit in respect of all claims relating to the Mortgaged
Property; (iii) execute and endorse all documents, checks or drafts received in
payment of any and all such expenses or any losses or damages under any
insurance policies maintained with respect to any Mortgaged Property; (iv)
execute financing statements in the Mortgagor's name as debtor; and (v) take any
action which the Mortgagor could take as owner of the Flight Equipment in and of
the realization by the Mortgagee of any of its rights and remedies herein
provided, including without limitation, action which the Mortgagor could take as
lessor under the Lease.
ARTICLE V
DEFEASANCE
SECTION 5.1 Payment of Indebtedness; Satisfaction. If the Mortgagor
shall pay and discharge all of the Obligations then, upon Mortgagor Request,
this Chattel Mortgage and the Lien, rights and interests in all the Collateral,
hereby granted shall cease, terminate and become null and void, and the
Mortgagee shall execute and deliver to the Mortgagor such instruments of
satisfaction and discharge of this Chattel Mortgage, and the Lien hereof, as may
be reasonably requested by Mortgagor, and, pay and deliver upon Mortgagor Order
all monies and other personal property then held as collateral security (but
excluding any monies received by Mortgagee in payment of the Obligations) by the
Mortgagee hereunder. All such instruments and documents of release or discharge
shall be prepared and filed at the sole cost and expense of Mortgagor and shall
be reasonably satisfactory in form and substance to the Mortgagee.
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ARTICLE VI
SUNDRY PROVISIONS
SECTION 6.1 Notices. Except as otherwise specifically provided to the
contrary herein:
A. Every notice or demand under this Chattel Mortgage required or
permitted to be given by the Mortgagee or the Mortgagor shall be in writing and
may be given or made by recognized overnight international courier or registered
mail, return receipt requested.
B. Every notice or demand shall be sent, in the case of a notice sent
by recognized overnight international courier, to the Mortgagee or to the
Mortgagor at their respective address set out in the preamble hereof.
C. Every notice or demand shall, except so far as otherwise expressly
provided by this Chattel Mortgage, be deemed to have been received, in the case
of a notice sent by recognized overnight international courier letter, when
actually delivered to Mortgagee or the Mortgagor at their respective addresses
referred to in Section 6.1B, or as of the date on which receipt of such notice
is refused or the courier advises that such notice is not deliverable at such
address with respect to the Mortgagee or Mortgagor, as the case may be.
D. Subject to the terms hereof, Mortgagee or the Mortgagor may change
its address by giving notice in accordance with this Section 6.1.
SECTION 6.2 Counterparts. This Chattel Mortgage may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same Chattel Mortgage.
SECTION 6.3 Governing Law; Consent to Jurisdiction. This Chattel
Mortgage shall be deemed to have been made in and shall be governed and
interpreted by the laws of the State of Arizona with respect to agreements made
by residents of the State of Arizona and to be wholly performed within said
state and the rights and remedies of the parties hereunder shall be determined
in accordance with such laws, except to the extent that the law of some other
jurisdiction may be mandatorily applicable to proceedings taken for the
enforcement of the rights of the Mortgagee hereunder; provided, however, that
any remedies herein provided which shall be valid under the laws
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of the jurisdiction where proceedings for the enforcement hereof shall be taken
shall not be affected by any invalidity thereof under the laws of the State of
Arizona. If any provision of this Chattel Mortgage or of any other agreement
between the parties hereto shall be held invalid or inapplicable to any
circumstance or in any jurisdiction, such invalidity or inapplicability shall
not affect any other provision hereof or of any other agreement between the
parties hereto which can be given effect without regard to the invalid
provision, nor to the same provision to the extent valid or enforceable in any
other applicable jurisdiction, nor shall any such inapplicability to any
circumstance affect the applicability of such terms to any other or different or
subsequent circumstance, all of such terms, conditions or provisions are deemed
severable. Each party hereby agrees that all actions or proceedings initiated by
Mortgagor and arising directly or indirectly out of this Chattel Mortgage may be
litigated in the Superior Court of Arizona, Maricopa County, or the United
States District Court for the District of Arizona and that any action or
proceeding initiated by Mortgagee and arising directly or indirectly out of this
Chattel Mortgage may be litigated in either such jurisdiction or in any
jurisdiction in which the Aircraft, Mortgagor or any of its assets may be
located. Each party hereby expressly submits and consents in advance to such
jurisdiction and venue in any action or proceeding commenced by either party in
any of such courts, and hereby waives personal service of the summons and
complaint, or other process of papers issued therein, and agrees that such
service of the summons and complaint may be made by registered mail, return
receipt requested, addressed to either party, at the respective addresses set
forth in Section 6.1 hereof. Each party waives any claim that Phoenix, Arizona
or the District of Arizona or any such other jurisdiction is an inconvenient
forum or an improper forum based on lack of venue. Should either party, after
being so served, fail to appear or answer any summons, complaint, process or
paper so served within 30 days after the mailing thereof, each party
acknowledges that as a result thereof, an order and/or judgment may be entered
by either party against the other as demanded or pleaded for in such summons,
complaint, process or papers. The choice of forum set forth herein shall not be
deemed to preclude the enforcement by either party of any judgment in any other
appropriate jurisdiction.
SECTION 6.4 Captions and Paragraph Headings. In construing any
provision of this Chattel Mortgage, no account shall be taken of the identity of
the party who prepared this Chattel Mortgage and no presumption shall arise as a
result thereof. Captions and paragraph headings used herein are for convenience
only and are not part of this Chattel Mortgage and shall not be used in
construing it.
SECTION 6.5 Delivery. This Chattel Mortgage is intended to and shall
be deemed to be delivered by the Mortgagor to the Mortgagee and accepted by the
Mortgagee in Arizona.
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SECTION 6.6 Limitation of Personal Liability of WTC. Each of the
representations, undertakings and agreements herein or in the Loan Agreement or
other Loan Documents stated to be those of the Mortgagor are not personal
representations, undertakings and agreements of WTC but are binding only on the
Trust Estate and the Mortgagor as trustee thereof, and except as to
representations, undertakings or agreements herein or in the other Transaction
Documents which are expressly stated to be those of WTC, nothing herein
contained shall be construed as creating any personal liability of WTC or any
incorporator or any past, present or future subscriber to the capital stock of,
or stockholder, officer or director of, WTC, any such liability being expressly
waived by the other parties on their own behalf and on behalf of any Persons
claiming through or under them; provided, however, that nothing in this Section
6.6 shall be deemed to limit in scope or substance the personal liability of WTC
(a) to the Owner Participant as expressly set forth in the Trust Agreement, (b)
in respect of the representations, warranties and agreements of WTC expressly
made as such herein or in any other Transaction Document to which it is a party,
and (c) for the consequences of its own gross negligence, willful misconduct,
and, in receiving, handling or remitting of funds only, its simple negligence.
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IN WITNESS WHEREOF, the Mortgagor and the Mortgagee have caused this
First Priority Chattel Mortgage and Security Agreement to be duly executed as of
the day and year first above written.
FINOVA CAPITAL CORPORATION WILMINGTON TRUST COMPANY,
not in its individual capacity, but
solely as Owner Trustee
By: /s/ Xxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx, Xx.
----------------------- ------------------------------------
/s/ Xxx X. Xxxxxx
Title: Vice President Title: XXXXX X. XXXXXXXX, XX.
--------------------- ---------------------------------
Senior Financial Services officer
SCHEDULE I
EVENTS OF DEFAULT
The Mortgagor shall be in default immediately and without further
notice beyond that specifically set forth below upon the occurrence of any of
the following, each of which is referred to as a Default or, after the
applicable notice period, an Event of Default:
1. Failure of Mortgagor to pay when due and payable any principal of
or interest on or other sum with respect to the Loan, the Note or Chattel
Mortgage or other sums which may become due hereunder or under any Loan
Document, whether by reason of stated maturity or due date, notice of
prepayment, cancellation, acceleration or otherwise, and, in the case of
payments of principal and interest, such sum is not fully paid within five
Banking Days' of the date due, and in the case of all other payments, such sum
is not fully paid within five (5) Banking Days after notice to Mortgagor of
non-payment;
2. (a) Any lapse of, or failure to maintain, insurance coverage on the
Aircraft required to be maintained under this Chattel Mortgage or any failure of
Mortgagor to perform its obligations set forth in Paragraphs 10.1(g), (h) or (i)
of the Loan Agreement or failure of any Owner Participant to perform its
respective obligations set forth in Paragraphs 10.2(d) or (h) of the Loan
Agreement or to attempt to cannibalize or part-out any Aircraft or any failure
of Lessee to commence the maintenance of the Aircraft and refurbishment of the
Engines in accordance with Schedule I to the Lease, or, upon 30 days written
notice to Mortgagee, within 60 days after such scheduled date, or such later
date to which Mortgagee may agree in its sole discretion;
(b) Any failure by Mortgagor to perform or cause to be performed
its obligations as set forth in this Chattel Mortgage concerning (i) the
preparation or recordation of any document or instrument required by Mortgagee
for the maintenance or perfection of any lien on the Mortgaged Property, or (ii)
maintenance of the Flight Equipment, within five (5) Banking Days after notice
thereof from the Mortgagee; or
(c) Any failure by the Mortgagor, Guarantor or any Owner
Participant to fulfill any other covenant or to perform any other obligation on
its part to be performed under any Loan Document to which it is a party, any
failure by Guarantor to remove or cure any material tax liens or other material
liens revealed by the searches
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referred to in Section 5.1(r) hereof and any failure of any Owner Participant to
provide direction to the Mortgagor in those instances in the Loan Documents in
which Mortgagor will take action only upon the direction of an Owner Participant
failure is not cured within thirty days after such failure shall have first
occurred;
3. Any representation or warranty made by any party in the Loan
Agreement or any other Loan Document or any financial statement shall prove to
have been untrue, inaccurate or incomplete in any material respect at the time
when made or when effective and such party fails to do that which shall be
necessary in order that said representation or warranty shall be true, accurate
or complete within thirty days after earlier of actual knowledge thereof or of
receipt of notice thereof;
4. Any approval required from or to be issued by the Mortgagor or any
Owner Participant in connection with the Loan Agreement or under any Loan
Document or the transactions contemplated herein or therein, shall be revoked,
rescinded, suspended or otherwise limited in effect and same shall not have been
reinstated within ten (10) days after the first effective date of such
revocation, rescission, suspension or limitation;
5. Mortgagor or any Owner Participant shall file a voluntary petition
in bankruptcy or a voluntary petition or an answer seeking readjustment of its
debts or for any other relief under any bankruptcy, insolvency, or other similar
act or law of any jurisdiction, domestic or foreign, now or hereafter existing,
or any action by Mortgagor or any Owner Participant indicating its consent to,
approval of, or acquiescence in, any such petition or proceeding; or if
Mortgagor or any Owner Participant shall apply or sustain the appointment by
consent or acquiescence of, a receiver or trustee for Mortgagor or any Owner
Participant or for all or a substantial part of its property; or if Mortgagor or
any Owner Participant shall make an assignment for the benefit of its creditors,
or if Mortgagor or any Owner Participant shall fail to pay or becomes unable to
pay its debts as they mature;
6. An involuntary petition against Mortgagor or any Owner Participant
in bankruptcy or seeking readjustment of its debts or for any other relief under
any bankruptcy, insolvency, or other similar act or law of any jurisdiction,
domestic or foreign, now or hereafter existing; or a receiver or trustee shall
be involuntarily appointed for Mortgagor or any Owner Participant or for all or
a substantial part of its property; or a warrant of attachment, execution or
similar process against any substantial part of the property of Mortgagor or any
Owner Participant shall be served on Mortgagor or any Owner Participant and any
of such events continues for sixty (60) days undismissed, unbonded or
undischarged;
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7. The Loan Agreement or any Loan Document shall at any time after its
respective execution and delivery and for any reason cease to be in full force
and effect or any certificate, instrument or documents issued and executed
pursuant hereto or thereto shall for any reason cease to be effective to
constitute a valid and perfected first priority Lien and security interest in
and to the Collateral, except for Permitted Liens;
8. The Aircraft or any part thereof shall be sold, transferred,
assigned, leased or otherwise disposed of by Mortgagor without Mortgagee's prior
written consent, except for Permitted Liens and except to the extent the Loan,
interest thereon and all other amounts due hereunder are paid in full;
9. A Lease Event of Default shall occur and be continuing (other than
with respect to the payment of Rent in respect of the DC-9 Aircraft which
Borrower causes Lessee to pay in order to retain quiet enjoyment to the DC-9
Aircraft in accordance with the second paragraph of the Repayment Schedule
attached to the Loan Agreement).
If Mortgagee shall be prevented by any order or any court or by
operation of any law from sending any notice permitted or required to commence a
period during which Mortgagor may cure any Event of Default hereunder, then the
period during which Mortgagor may cure such Event of Default shall commence to
run without notice on the first date on which Mortgagee would have been entitled
to give such notice but for the effectiveness of such order or law.
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SCHEDULE II
FORM OF
SUPPLEMENTAL CHATTEL MORTGAGE
THIS SUPPLEMENTAL CHATTEL MORTGAGE dated , 19 from
------------ --
WILMINGTON TRUST COMPANY, a Delaware banking corporation, not in its individual
capacity, but solely as Owner Trustee, having its chief executive office and
principal place of business at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter called the "Mortgagor"), as Mortgagor,
to FINOVA CAPITAL CORPORATION, a Delaware corporation, having its chief
executive office and principal place of business at 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 (hereinafter called the "Mortgagee"), as Mortgagee.
WHEREAS, the Mortgagor has heretofore executed and delivered to the
Mortgagee a First Priority Chattel Mortgage and Security Agreement dated May
,1997 (hereinafter, as at any time supplemented or amended, called the
---
"Original Mortgage," terms defined therein, unless otherwise defined herein,
being used herein as therein defined), covering certain Flight Equipment of the
Mortgagor, to secure its Obligations, as defined in the Original Mortgage;
WHEREAS, the Mortgagor is the legal and beneficial owner, free and
clear of all mortgages, security interests, Liens, charges and encumbrances,
other than the Lien of the Original Mortgage and Liens permitted by the Original
Mortgage, of the additional flight equipment hereinbelow described, and desires
to execute and deliver this Supplemental Chattel Mortgage.
NOW, THEREFORE, THIS INSTRUMENT WITNESSETH that to secure the
Obligations and for the purpose of specifically subjecting such property to, and
of confirming, the Lien of the Original Mortgage, the Mortgagor does hereby
grant, bargain, sell, transfer, convey and mortgage unto the Mortgagee, its
successors and assigns, and gives to the Mortgagee a security interest in, the
following described property, to wit:
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AIRFRAME
__ ( ) Airframe, identified as follows:
FAA Manufacturer's
Manufacturer Model Registration Number Serial Number
------------ ----- ------------------- --------------
together with all aircraft engines, appliances, equipment, jet fuel, instruments
and accessories (including, without limitation, radio and radar), whether now
owned or hereafter acquired from time to time thereto belonging, owned by the
Mortgagor and installed in or appurtenant to said airframe.
AIRCRAFT ENGINES
__ ( ) aircraft engines, each such engine having 750 or more take-off
horsepower or the equivalent thereof, identified as follows:
Manufacturer's
Manufacturer Model Serial Number
------------ ----- --------------
together with all equipment and accessories thereto belonging, by whomsoever
manufactured, owned by the Mortgagor and installed in or appurtenant to said
aircraft engines.
Together with all substitutions, replacements and renewals of the
property above described, and all property which shall hereafter become
physically attached to or incorporated in the property above described, whether
the same are now owned by the Mortgagor or shall hereafter be acquired by it.
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Together with all rents, issues, profits, proceeds (including
insurance proceeds) revenues and other income of such property, except for the
Letter of Credit (as defined in the Lease) and the Excluded Amounts, and all of
the estate, right, title and interest of every nature whatsoever of the
Mortgagor, at law or in equity, in and to such property and every part and
parcel thereof.
EXCLUDING, HOWEVER, IN ALL CASES, EXCLUDED AMOUNTS.
TO HAVE AND TO HOLD all and singular the property aforesaid unto the
Mortgagee, its successors and assigns, as security as aforesaid and for the uses
and purposes and subject to the covenants, agreements, provisions and conditions
set forth in the Original Mortgage.
This instrument shall be construed as supplemental to the Original
Mortgage and shall form a part thereof, and the Original Mortgage and each
Supplemental Chattel Mortgage heretofore executed and delivered, which are
hereby, by reference, incorporated herein, are hereby ratified, approved and
confirmed.
This instrument may be simultaneously executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall together constitute but one and the same Supplemental Chattel
Mortgage.
This Supplemental Chattel Mortgage is intended to be and shall be
deemed to be delivered by the Mortgagor to the Mortgagee and accepted by the
Mortgagee in Phoenix, Arizona.
This instrument shall be effective on the date hereof.
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IN WITNESS WHEREOF, the Mortgagor has caused this instrument to be
duly executed.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------------
Title:
---------------------------------
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