Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Engines and/or engines then installed thereon, the Borrower shall forthwith but in any event within 15 days of such occurrence give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below. 1. On or before the Business Day next following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower shall pay or cause to be paid to the Indenture Trustee an amount equal to the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of the Loan Certificates, or 2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution). (b) If the Borrower elects to replace the Aircraft, the Airframe, or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period provided, the Borrower shall be deemed to have elected to pay, and shall pay, to the Indenture Trustee within three Business Days the amount determined in accordance with Section 5.01(a)(1). (c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will: (A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (B) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above; 2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with; 3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower: (a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or (b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2). 4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect. 5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine. 6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” “Airframe” and “Engine,” as the case may be, as defined herein.
Appears in 2 contracts
Sources: Loan Agreement (Pinnacle Airlines Corp), Loan Agreement (Pinnacle Airlines Corp)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Owner shall forthwith but (and in any event event, within 15 fifteen (15) days of after such occurrence occurrence) give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty forty-five (6045) days after such occurrence, Event of Loss the Owner shall give the Indenture Trustee written notice of its election to perform one of the following options (it being understood agreed that if the failure to give Owner shall not have given such notice of election within such period, the Owner shall be deemed to be an election of have elected the option set forth in paragraph clause (1i) below.). The Owner may elect either to:
1. On or before (i) redeem the Business Day next following Secured Certificates in accordance with Section 2.10 hereof not later than the earlier of (x) the 90th Business Day next succeeding the 120th day following the occurrence of such Event of Loss or (y) the third an earlier Business Day following irrevocably specified fifteen (15) days in advance by notice from the receipt Owner to the Indenture Trustee; or
(ii) substitute an aircraft or an airframe or an airframe and one or more engines, as the case may be; provided that, if the Owner does not perform its obligation to effect such substitution in accordance with this Section 7.06(a) during the period of time provided herein, then the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower Owner shall pay or cause to be paid to the Indenture Trustee an amount equal to on the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of Business Day next succeeding the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th 120th day following the occurrence of such Event of Loss the amount specified in clause (i) above. In the event the Owner shall elect to substitute an aircraft (or an airframe or an airframe and one or more engines, as the case may be), the Owner shall at its sole expense, not later than the Business Day next succeeding Business the 120th day if following the 90th day is not a Business Dayoccurrence of such Event of Loss, (x) the Borrower shall cause to be subject subjected to the Lien of this Trust Indenture, in replacement of the Trust Indenture pursuant Airframe with respect to Section 5.01(c) an airframe and an engine for each Engine suffering such which the Event of Loss occurred, a Replacement Airframe and, if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use shall have been installed on the Airframe when it suffered an Event of Loss, a Replacement Engine therefor, such Replacement Airframe and compatible with the other Engine mortgaged hereunder)Replacement Engines, in each case owned by the Borrower if any, to be free and clear of all Liens (other than Permitted Liens) and having at least the a value, utility and remaining useful life and being in as good an operating condition (without regard to hours or cycles) at least equal to the Airframe or Engine, as the Airframe and corresponding Engine, if anycase may be, subject to such Event of Loss (in each case without taking into account hours, cycles assuming no Event of Loss had occurred and maintenance schedule) assuming that such the Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder the Replacement Airframe and the Replacement Engines, if any, shall be of the same or improved make and model as initially mortgaged hereunder the Airframe or Engine, as the case may be, that are replaced and shall be in a passenger configuration (or will be brought into such configuration by Borrower before y) prior to or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the AirframeOwner (or any Lessee), or at its own expense, will (1) furnish the Indenture Trustee a copy of the original ▇▇▇▇ of sale respecting such Replacement Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period providedReplacement Engines, if any, which shall have been duly registered as a “contract of sale” in respect thereof on the Borrower shall be deemed to have elected to payInternational Registry, as applicable, and shall pay, appropriate instruments assigning to the Indenture Trustee within three Business Days the amount determined in accordance benefits, if any, of all manufacturer’s and vendor’s warranties generally available and permitted to be assigned by the Owner with Section 5.01(a)(1).
respect to such Replacement Airframe and Replacement Engines, if any, (c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A2) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower Owner and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to Airframe being replaced may then be registeredregistered as permitted by Section 8(f) of the Participation Agreement with corresponding registrations being made with the International Registry, and as applicable, (B3) cause a financing statement or other requisite documents of a similar nature statements with respect to such Replacement Airframe and Replacement Engines, if any, to be filed pursuant to the Uniform Commercial Code in such place or places as are deemed necessary in order or desirable by counsel for the Indenture Trustee to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement EngineTrustee’s interest therein, and (C4) register or consent to furnish the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate with such evidence of its independent insurance broker to the effect that compliance with the insurance provisions of Article VI Section 7.04 with respect to such Replacement Airframe and Replacement Engines, if any, as the Indenture Trustee’s counsel may reasonably request, (5) furnish the Indenture Trustee with (A) an opinion of in-house counsel to the Owner, or other counsel satisfactory to the Indenture Trustee, stating that the Replacement Engine Airframe and Replacement Engines, if any, has or have been complied with;
3. furnish validly subjected to the Lien of this Trust Indenture, the instruments subjecting such Replacement Airframe and Replacement Engines, if any, to the Lien of this Trust Indenture, have been duly filed for recordation pursuant to the Federal Aviation Act, registered with the International Registry pursuant to the Cape Town Convention, if applicable, or registered or filed pursuant to any other law then applicable to the registration of the Replacement Airframe and Replacement Engines, if any, and no further action, filing or recording of any document is necessary or advisable in order to establish and perfect the Lien of this Trust Indenture on such Replacement Airframe and Replacement Engines, if any (B) a certificate signed by a duly authorized officer of the Borrower Owner stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframefollowing: (i) a description of the replaced Airframe and Engines, if any, which shall be identified by manufacturer, model, U.S. FAA registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe and Replacement Engines, if any, to be received (including the manufacturer, model, U.S. FAA registration number (or other applicable registration information) and manufacturer’s serial number)) as consideration for the replaced Airframe and Engines, if any; (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe and Replacement Engines, if any, is or are of the Borrower will same or an improved model as the Airframe and Engines, if any, requested to be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2)released from this Trust Indenture; and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements (without regard to hours or cycles) of the Replacement Airframe and Replacement Engines, if any, as of the date of such certificate (which in the judgment of the Owner shall be not less than the value, utility and remaining useful life (without regard to hours or cycles) of the Airframe and Engines, if any, requested to be released (assuming no Event of Loss and that such Airframe and Engines, if any, was or were in the condition and repair required to be maintained under this Trust Indenture)); and (v) that no Event of Default or Default has occurred which has not been remedied or waived, and that the Owner will not be in default, by the making and granting of the request for release and the addition of a Replacement Airframe and Replacement Engines, if any, in the performance of any of the terms and covenants of the Owner, and (C) a certificate from either an aircraft engineer (who may be an employee of the Owner) or a firm of independent aircraft appraisers selected by the Owner confirming the accuracy of the information set forth in sub-clause (iv) of the immediately preceding clause (5)(B) of this Section 5.01(a)(27.06(a), and (6) furnish the Indenture Trustee with an opinion of counsel (which shall be Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and, if not, other counsel chosen by the Owner and reasonably acceptable to the Indenture Trustee) reasonably satisfactory to the Indenture Trustee to the effect that the Indenture Trustee will be entitled to the benefits of Section 1110 of the U.S. Bankruptcy Code with respect to the Replacement Airframe and any Replacement Engine.
6. provide an Airframe, provided that such opinion need not be delivered to the extent that immediately prior to such substitution the benefits of Section 1110 of the U.S. Bankruptcy Code were not, solely by reason of a change in law or opinions from the Borrower’s counsel reasonably satisfactory governmental interpretation thereof, available to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected to the Lien of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced), the Trust Indenture Supplement subjecting such Replacement Property to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurred. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “Aircraft,” ”, “Airframe” and “Engine,” ”, as the case may be, as defined herein. Upon the Owner having provided a Replacement Airframe and Replacement Engines, if any, as provided for in this Section 7.06(a), (x) the Lien of this Trust Indenture shall continue with respect to such Replacement Airframe and Replacement Engines, if any, as though no Event of Loss had occurred; the Indenture Trustee shall, at the cost and expense of the Owner, release from the Lien of this Trust Indenture the replaced Airframe and Engines, if any, with respect to which such Event of Loss occurred, by executing and delivering to the Owner such documents and instruments, prepared at the Owner’s expense, as the Owner may reasonably request to evidence such release including, without limitation, any registrations with the International Registry pursuant to the Cape Town Convention; and (y) the Indenture Trustee shall assign to the Owner all claims it may have against any other Person arising from the Event of Loss and the Owner shall receive all insurance proceeds and proceeds from any award in respect of condemnation, confiscation, seizure or requisition, including any investment interest thereon, to the extent not previously applied to the purchase price of the Replacement Airframe and Replacement Engines, if any, as provided in Sections 7.04(b) and 7.06(c)(i) hereof.
Appears in 1 contract
Sources: Trust Indenture and Security Agreement (Northwest Airlines Corp)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Airframe and the Engines and/or engines then installed thereon, the Borrower Owner shall forthwith but (and in any event event, within 15 fifteen (15) days of after such occurrence occurrence) give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty forty-five (6045) days after such occurrence, Event of Loss the Owner shall give the Indenture Trustee written notice of its election to perform one of the following options (it being understood agreed that if the failure to give Owner shall not have given such notice of election within such period, the Owner shall be deemed to be an election of have elected the option set forth in paragraph clause (1i) below.). The Owner may elect either to:
1. On or before (i) redeem the Business Day next following Secured Certificates in accordance with Section 2.10 hereof not later than the earlier of (x) the 90th Business Day next succeeding the 120th day following the occurrence of such Event of Loss or (y) the third an earlier Business Day following irrevocably specified fifteen (15) days in advance by notice from the receipt Owner to the Indenture Trustee; or
(ii) substitute an aircraft or an airframe or an airframe and one or more engines, as the case may be; provided that, if the Owner does not perform its obligation to effect such substitution in accordance with this Section 7.06(a) during the period of time provided herein, then the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower Owner shall pay or cause to be paid to the Indenture Trustee an amount equal to on the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of Business Day next succeeding the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th 120th day following the occurrence of such Event of Loss the amount specified in clause (i) above. In the event the Owner shall elect to substitute an aircraft (or an airframe or an airframe and one or more engines, as the case may be), the Owner shall at its sole expense, not later than the Business Day next succeeding Business the 120th day if following the 90th day is not a Business Dayoccurrence of such Event of Loss, (x) the Borrower shall cause to be subject subjected to the Lien of this Trust Indenture, in replacement of the Trust Indenture pursuant Airframe with respect to Section 5.01(c) an airframe and an engine for each Engine suffering such which the Event of Loss occurred, a Replacement Airframe and, if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use shall have been installed on the Airframe when it suffered an Event of Loss, a Replacement Engine therefor, such Replacement Airframe and compatible with the other Engine mortgaged hereunder)Replacement Engines, in each case owned by the Borrower if any, to be free and clear of all Liens (other than Permitted Liens) and having at least the a value, utility and remaining useful life and being in as good an operating condition (without regard to hours or cycles) at least equal to the Airframe or Engine, as the Airframe and corresponding Engine, if anycase may be, subject to such Event of Loss (in each case without taking into account hours, cycles assuming no Event of Loss had occurred and maintenance schedule) assuming that such the Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder the Replacement Airframe and the Replacement Engines, if any, shall be of the same or improved make and model as initially mortgaged hereunder the Airframe or Engine, as the case may be, that are replaced and shall be in a passenger configuration (or will be brought into such configuration by Borrower before y) prior to or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the AirframeOwner (or any Lessee), or at its own expense, will (1) furnish the Indenture Trustee a copy of the original ▇▇▇▇ of sale respecting such Replacement Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period providedReplacement Engines, the Borrower shall be deemed to have elected to payif any, and shall pay, appropriate instruments assigning to the Indenture Trustee within three Business Days the amount determined in accordance benefits, if any, of all manufacturer's and vendor's warranties generally available and permitted to be assigned by the Owner with Section 5.01(a)(1).
respect to such Replacement Airframe and Replacement Engines, if any, (c) Prior to or at the time of any substitution pursuant to Section 5.01(a)(2), the Borrower will:
(A2) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine to be duly executed by the Borrower Owner and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to Replacement Airframe and Replacement Engines, if any, may then be registeredregistered as permitted by Section 8(f) of the Participation Agreement, and (B3) cause a financing statement or other requisite documents of a similar nature statements with respect to such Replacement Airframe and Replacement Engines, if any, to be filed pursuant to the Uniform Commercial Code in such place or places as are deemed necessary in order or desirable by counsel for the Indenture Trustee to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement EngineTrustee's interest therein, and (C4) register or consent to furnish the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate with such evidence of its independent insurance broker to the effect that compliance with the insurance provisions of Article VI Section 7.04 with respect to such Replacement Airframe or and Replacement Engine have been complied with;
3. Engines, if any, as the Indenture Trustee's counsel may reasonably request, (5) furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, an opinion of in-house counsel to the extent then in effect and (B) Replacement Engine substantially the same as the Engine WarrantiesOwner, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s other counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect stating that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted LiensEngines, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Lossif any, the Replacement Property has or have been duly validly subjected to the Lien of the this Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect of the property being so replaced)Indenture, the Trust Indenture Supplement instruments subjecting such Replacement Property Airframe and Replacement Engines, if any, to the Lien of this Trust Indenture has Indenture, have been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if to the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all registration of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engineand Replacement Engines, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunderif any, and the Indenture Trustee will execute such documents no further action, filing or recording of any document is necessary or advisable in order to establish and provide its consent to the International Registry as Borrower shall request to release from perfect the Lien of this Trust Indenture on such Replacement Airframe and Replacement Engines, if any (B) a certificate signed by a duly authorized officer of the Aircraft Owner stating the following: (i) a description of the replaced Airframe and Engines, if any, which shall be identified by manufacturer, model, FAA registration number (or other applicable registration information) and manufacturer's serial number; (ii) a description of the Replacement Airframe and Replacement Engines, if any, to be received (including the manufacturer, model, FAA registration number (or other applicable registration information) and manufacturer's serial number) as consideration for the replaced Airframe and Engines, if any; (iii) that the Replacement Airframe and Replacement Engines, if any, is or are of the same or an improved model as the Airframe and one or more Engines, if any, requested to be released from this Trust Indenture; (iv) the value, utility and remaining useful life (without regard to hours or cycles) of the Replacement Airframe and Replacement Engines, if any, as of the date of such certificate (which in the judgment of the Owner shall be not less than the value, utility and remaining useful life (without regard to hours or cycles) of the Airframe and Engines, if any, requested to be released (assuming no Event of Loss and that such Airframe and Engines, if any, was or were in the condition and repair required to be maintained under this Trust Indenture)); and (v) that no Event of Default or Default has occurred which has not been remedied or waived, and that the Owner will not be in default, by the making and granting of the request for release and the addition of a Replacement Airframe and Replacement Engines, if any, in the performance of any of the terms and covenants of the Owner, and (C) a certificate from either an aircraft engineer (who may be an employee of the Owner) or a firm of independent aircraft appraisers selected by the Owner confirming the accuracy of the information set forth in sub-clause (iv) of the immediately preceding clause (5)(B) of this Section 7.06(a), and (6) furnish the Indenture Trustee with an opinion of counsel (which shall be Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ and, if not, other counsel chosen by the Owner and reasonably acceptable to the Indenture Trustee) reasonably satisfactory to the Indenture Trustee to the effect that the Indenture Trustee will be entitled to the benefits of Section 1110 of the U.S. Bankruptcy Code with respect to which the Replacement Airframe, provided that such Event opinion need not be delivered to the extent that immediately prior to such substitution the benefits of Loss occurredSection 1110 of the U.S. Bankruptcy Code were not, solely by reason of a change in law or governmental interpretation thereof, available to the Indenture Trustee. For all purposes hereof, the property so substituted shall after such transfer be deemed part of the property subject to the Lien of this Trust Indenture and shall be deemed an “"Aircraft,” “", "Airframe” " and “"Engine,” ", as the case may be, as defined herein. Upon the Owner having provided a Replacement Airframe and Replacement Engines, if any, as provided for in this Section 7.06(a), (x) the Lien of this Trust Indenture shall continue with respect to such Replacement Airframe and Replacement Engines, if any, as though no Event of Loss had occurred; the Indenture Trustee shall, at the cost and expense of the Owner, release from the Lien of this Trust Indenture the replaced Airframe and Engines, if any, with respect to which such Event of Loss occurred, by executing and delivering to the Owner such documents and instruments, prepared at the Owner's expense, as the Owner may reasonably request to evidence such release; and (y) the Indenture Trustee shall assign to the Owner all claims it may have against any other Person arising from the Event of Loss and the Owner shall receive all insurance proceeds and proceeds from any award in respect of condemnation, confiscation, seizure or requisition, including any investment interest thereon, to the extent not previously applied to the purchase price of the Replacement Airframe and Replacement Engines, if any, as provided in Sections 7.04(b) and 7.06(c)(i) hereof.
Appears in 1 contract
Sources: Trust Indenture and Security Agreement (Northwest Airlines Inc /Mn)
Event of Loss with Respect to the Aircraft. (a) Upon the occurrence of an Event of Loss with respect to the Airframe or the Airframe, any Engines and/or engines then installed thereon, the Borrower shall forthwith but in any event within 15 days of such occurrence give each Holder and the Indenture Trustee written notice of such Event of Loss, and within sixty (60) days after such occurrence, give the Indenture Trustee written notice of its election to perform one of the following options (it being understood that the failure to give such notice shall be deemed to be an election of the option set forth in paragraph (1) below.
1. On or before the Business Day next following the earlier of (x) the 90th day following the occurrence of such Event of Loss or (y) the third Business Day following the receipt of the insurance proceeds in respect of such Event of Loss (but in any event not earlier than the date of Borrower’s election to make payment under this paragraph (1)), the Borrower shall pay or cause to be paid to the Indenture Trustee an amount equal to the aggregate amount of outstanding principal, (but without Make-Whole Amount, if any), interest and other amounts then due on or in respect of the Loan Certificates, or
2. provided no Special Default or Event of Default shall have occurred and be continuing, not later than the 90th day following the occurrence of such Event of Loss (or the next succeeding Business day if the 90th day is not a Business Day) the Borrower shall cause to be subject to the Lien of the Trust Indenture pursuant to Section 5.01(c) an airframe and an engine for each Engine suffering such Event of Loss if any (of the same manufacturer of an equivalent or improved model as the Engine and suitable for installation and use on the Airframe and compatible with the other Engine mortgaged hereunder), in each case owned by the Borrower free and clear of all Liens (other than Permitted Liens) and having at least the value, utility and remaining useful life and being in as good an operating condition as the Airframe and corresponding Engine, if any, subject to such Event of Loss (in each case without taking into account hours, cycles and maintenance schedule) assuming that such Aircraft had been maintained in accordance with the terms of this Trust Indenture; provided that any aircraft or airframe so substituted hereunder shall be of the same or improved make and model as initially mortgaged hereunder and shall be in a passenger configuration (or will be brought into such configuration by Borrower before or at the time of any such substitution).
(b) If the Borrower elects to replace the Aircraft, the Airframe, Airframe or the Airframe and one or more Engines pursuant to Section 5.01(a)(2) but fails to do so within the time period providedor engines then installed thereon, the Borrower Lessee shall be deemed to have elected to pay, promptly (and shall pay, to the Indenture Trustee in any event within three five (5) Business Days in the amount determined case of an event described in accordance with Section 5.01(a)(1).
paragraphs (ci) Prior and (ii) of the definition of Event of Loss and within fifteen (15) days in any other case) give the Lessor written notice of such Event of Loss (or cause such notice to or at the time of any substitution pursuant to Section 5.01(a)(2be given), which notice shall specify the Borrower will:
actions the Lessee is taking (A) cause a Trust Indenture Supplement with respect to any Replacement Airframe or Replacement Engine causing to be duly executed by the Borrower and filed for recording pursuant to the Federal Aviation Act, or the applicable laws, rules and regulations of any other jurisdiction in which the airframe is to be registered, and (Btaken) cause a financing statement or other requisite documents of a similar nature to be filed pursuant to the Uniform Commercial Code in such place or places as necessary in order to perfect the security interests created by this Trust Indenture and any Trust Supplement in such Replacement Airframe and any Replacement Engine, and (C) register or consent to the registration with the International Registry of the contract of sale to Borrower and of the international interest in such Replacement Airframe and any Replacement Engine for the benefit of Indenture Trustee under this Indenture and the Indenture Supplement referred to above;
2. furnish a certificate of its independent insurance broker to the effect that the insurance provisions of Article VI with respect to such Replacement Airframe or Replacement Engine have been complied with;
3. furnish a certificate signed by a duly authorized officer of the Borrower stating the following on behalf of the Borrower:
(a) with respect to any Replacement Airframe: (i) a description of the Airframe which shall be identified by manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number; (ii) a description of the Replacement Airframe to be received (including the manufacturer, model, U.S. registration number (or other applicable registration information) and manufacturer’s serial number); (iii) that on the date of the Trust Indenture Supplement relating to the Replacement Airframe the Borrower will be the owner of such Replacement Airframe, free and clear of all Liens except Permitted Liens, that such Replacement Airframe will on such date meet the requirements of Section 5.01(a)(2); and (iv) that no Special Default or Event of Default has occurred and is continuing, or
(b) with respect to any Replacement Engine: (i) a description of the Engine suffering the Event of Loss, which shall be identified by manufacturer’s serial number; (ii) a description of the Replacement Engine (including, in each case, the manufacturer’s name and serial number); (iii) . It is expressly agreed that if any Base Rent Payment Date occurs on the date of the Trust Indenture Supplement relating to the Replacement Engine, the Borrower will be the owner of or after such Replacement Engine, free and clear of all Liens except Permitted Liens, that such Replacement Engine will on such date meet the requirements of Section 5.01(a)(2).
4. furnish the appropriate instruments assigning to the Indenture Trustee as additional collateral under this Trust Indenture the benefit of Manufacturer’s warranties with respect to such (A) Replacement Airframe substantially the same as the Aircraft Warranties, to the extent then in effect and (B) Replacement Engine substantially the same as the Engine Warranties, to the extent then in effect.
5. deliver a certificate from a firm of independent aircraft appraisers reasonably satisfactory to the Indenture Trustee confirming the value, utility and remaining useful life requirements set forth in Section 5.01(a)(2) with respect to the Replacement Airframe and any Replacement Engine.
6. provide an opinion or opinions from the Borrower’s counsel reasonably satisfactory to the Indenture Trustee, with a supporting priority search certificate issued by the International Registry to the effect that the Trust Indenture Supplement and warranty assignment referred to in clauses (1) and (4) above have been duly authorized and delivered, the Replacement Airframe and any Replacement Engines (together the “Replacement Property”) are free and clear of all Liens of record with the FAA and International Registry other than Permitted Liens, the Indenture Trustee is entitled to the benefits of 11 USC §1110 with respect to the Aircraft which includes the Replacement Property to the same extent as with respect to the Aircraft immediately prior to the applicable Event of Loss, the Replacement Property has been duly subjected Lessee shall pay to the Lien Lessor on such date the amount equal to the Base Rent which would have become due and payable on such date in accordance with the terms hereof had no Event of the Trust Indenture on a first priority (subject to Permitted Liens) and perfected basis (or, if the Aircraft is not then subject to U.S. registry, having the same priority and perfection required to be maintained under the Operative Documents in respect Loss so occurred. Following such an Event of the property being so replaced)Loss, the Trust Indenture Supplement subjecting such Replacement Property Term shall end on the earlier of (i) the date the Lessee or Lessor receives the Insurance Proceeds with respect to the Trust Indenture has been duly filed for recordation pursuant to the Federal Aviation Act or any other law then applicable if the Aircraft is not registered in the United States and that the registrations with the International Registry required under clause (C) of paragraph 1 above have been made. Upon compliance by the Borrower with all of the terms of Section 5.01(c) applicable to any Replacement Airframe or Engine, the Airframe and any Engines suffering such Event of Loss shall cease to be an “Airframe” and “Engine” hereunder, and (ii) ninety (90) days after the Indenture Trustee will execute such documents and provide its consent to the International Registry as Borrower shall request to release from the Lien occurrence of this Trust Indenture the Aircraft or the Airframe and one or more Engines, with respect to which such Event of Loss occurredLoss, on which date the Lessee shall pay to the Lessor an amount equal to the Agreed Value (as defined in Schedule 3 (Certain Economic Terms) hereto) as of such date of termination and all accrued but unpaid PBH Rent and/or Base Rent to such date of termination. For all purposes hereofUpon full compliance by the Lessee with the terms of this paragraph (a) the Lessor will (subject to insurer’s salvage rights, if any) transfer to, or upon the order of, the property so substituted shall after such transfer be deemed part Lessee on an “as-is, where- is” basis without recourse or warranty, all of the property subject Lessor’s right, title and interest, if any, in and to the Lien of this Trust Indenture Aircraft by an appropriate instrument, and shall be deemed an “Aircraft,” “Airframe” any manufacturer’s or repairer’s warranties relating thereto and “Engine,” as the case may bewill take such other action, at Lessee’s cost, as defined hereinmay be necessary to effect such transfer.
Appears in 1 contract