Transaction Approval Requirements. (a) The Servicer shall not do any of the following without the express prior written approval of WEST: (i) Except as required in accordance with the terms of any Lease or any other agreement with the Lessee or the Asset Transfer Agreement, and in any event in accordance with the terms and conditions of the Related Documents, sell (or enter into any commitment or agreement to sell) or otherwise transfer or dispose of any Engine. (ii) Enter into any new Lease (or any renewal or extension of an existing Lease or other agreement with a Lessee) of any Engine if the Lease does not comply with the requirements of the Indenture. (iii) Unless provided for in the then current Operating Budget or Asset Expenses Budget, enter into any contract for the modification or maintenance of any Engine if the costs to be incurred thereunder by WEST or the relevant Subsidiary are not economically justifiable in light of then current and reasonably anticipated market conditions for used aircraft engines. (iv) Subject to Section (e) of Section 4.02 of Schedule 2.02(a), enter into on behalf of WEST or any Subsidiary, any capital commitment or confirm any order or commitment (other than the issuance of Warehouse Notes under the Indenture) to acquire, or acquire on behalf of WEST or any Subsidiary, aircraft engines, except that the Servicer may enter into any such capital commitment or order or commitment to acquire an Additional Engine or spare parts for an Engine so long as the same is provided for in the then applicable Operating Budget or Asset Expenses Budget. (v) Issue any guarantee on behalf of, or otherwise pledge the credit of WEST or any Subsidiary, other than any guarantee of any Subsidiary obligation by WEST or WEST Funding. (vi) Unless permitted by any other provision of this Section 7.06, enter into any agreement for services to be provided in respect of Engines by third parties the cost of which is to be borne by WEST and the Subsidiaries, except in each case (A) to the extent that the same is an Engine Expense provided for in the then applicable Operating Budget or Asset Expenses Budget or (B) for third party service providers (including legal counsel) that would be used by the Servicer in the ordinary course of the Servicer’s business. (vii) Incur on behalf of WEST or any Subsidiary any liability (actual or contingent) or cause any such liability (actual or contingent) to be incurred, except for a liability (A) contemplated in the then applicable Operating Budget or Asset Expenses Budget, (B) pursuant to a transaction of a type which is subject to another Transaction Approval Requirement which Transaction Approval Requirement is satisfied or is otherwise authorized by such Transaction Approval Requirement or (C) incurred in the ordinary course of the business of WEST and the Subsidiaries. (b) Any transaction entered into by the Servicer on behalf of WEST and the Subsidiaries shall be on an arm’s-length basis and on market terms, provided that any transaction approved by the Controlling Trustees shall be deemed to satisfy this clause (b). (c) The actions specified in clauses (a)(i) and (a)(iv) of this Section 7.06 must be approved by a majority of the Controlling Trustees, including the Independent Controlling Trustee. (d) The transaction approval requirements (the “Transaction Approval Requirements”) set forth in clauses (i) through (vii) of Section 7.06(a) may only be amended by mutual agreement of the parties hereto and with the written consent of the Indenture Trustee (acting at the direction of the Requisite Majority), and shall not in any event be amended to reduce or circumscribe the delegation to the Servicer of the level of autonomy, authority and responsibility contemplated by the Transaction Approval Requirements with respect to the performance of the Services. The Servicer shall provide notice to the Indenture Trustee of any amendment to the Transaction Approval Requirements for inclusion of such notice by the Indenture Trustee in the next Annual Report.
Appears in 2 contracts
Sources: Servicing Agreement, Servicing Agreement (Willis Lease Finance Corp)
Transaction Approval Requirements. (a) The Servicer shall not do any of the following without the express prior written approval of WESTAFT:
(i) Except as otherwise required in accordance with the terms of any Lease or any other agreement with the Lessee or the Asset Transfer Purchase Agreement, and in any event in accordance with the terms and conditions of the Related Documents, sell (or enter into any commitment or agreement to sell) or otherwise transfer or dispose of any Aircraft (excluding any sale or exchange of any Engine, parts or components thereof or aircraft or engine spare parts or ancillary equipment or devices furnished therewith) forming part of the Aircraft Assets.
(ii) Enter into any new Lease (or any renewal or extension of an existing Lease, unless any such Lease being renewed or other agreement extended had previously been approved pursuant to this Section 7.04(a) or if any such Lease contains an extension option and such option is being exercised in accordance with a Lesseethe terms of such Lease) of any Engine Aircraft Assets if the Lease does shall not comply with all the requirements applicable provisions of Sections 5.02 and 5.03 of the IndentureIndenture with respect to the leasing of such Aircraft Assets or if the Lease grants a purchase option in favor of the lessee.
(iii) Terminate any Lease or Leases (without substitution of, or replacement by, another substantially similar Lease or Leases with respect to such Aircraft Assets) to any single Lessee with respect to any Aircraft Assets then having an aggregate depreciated net book value on the books of the applicable Person(s) within the AFT Group in excess of $75,000,000.
(iv) Unless provided for in the then current Operating Approved Budget or Asset Expenses Budget(including the provisions of Section 7.03(e)), enter into any contract for the modification or and/or maintenance of any Engine Aircraft Assets if the costs to be incurred thereunder by WEST or the relevant Subsidiary are not economically justifiable in light of then current and reasonably anticipated market conditions for used aircraft engines.
(iv) Subject to Section (e) of Section 4.02 of Schedule 2.02(a), enter into on behalf of WEST or any Subsidiary, any capital commitment or confirm any order or commitment (other than applicable Person within the issuance of Warehouse Notes under the Indenture) to acquire, or acquire on behalf of WEST or any Subsidiary, aircraft engines, except that the Servicer may enter into any such capital commitment or order or commitment to acquire an Additional Engine or spare parts for an Engine so long as the same is provided for in the then applicable Operating Budget or Asset Expenses Budget.
(v) Issue any guarantee on behalf of, or otherwise pledge the credit of WEST or any Subsidiary, other than any guarantee of any Subsidiary obligation by WEST or WEST Funding.
(vi) Unless permitted by any other provision of this Section 7.06, enter into any agreement for services to be provided in respect of Engines by third parties the cost of which is to be borne by WEST and the Subsidiaries, except in each case AFT Group (A) to exceed the extent that greater of (1) the same is an Engine Expense provided estimated aggregate cost of a heavy maintenance "D" check for the airframe and a total refurbishment of the engines for Aircraft Assets of the type in question and (2) the then amount of the available maintenance reserves or other collateral under the applicable Operating Budget or Asset Expenses Budget Lease or (B) for third party service providers (including legal counsel) that would be used by the Servicer in are outside the ordinary course of the Servicer’s AFT Group's business.
(vii) Incur on behalf of WEST or any Subsidiary any liability (actual or contingent) or cause any such liability (actual or contingent) to be incurred, except for a liability (A) contemplated in the then applicable Operating Budget or Asset Expenses Budget, (B) pursuant to a transaction of a type which is subject to another Transaction Approval Requirement which Transaction Approval Requirement is satisfied or is otherwise authorized by such Transaction Approval Requirement or (C) incurred in the ordinary course of the business of WEST and the Subsidiaries.
(b) Any transaction entered into by the Servicer on behalf of WEST and the Subsidiaries shall be on an arm’s-length basis and on market terms, provided that any transaction approved by the Controlling Trustees shall be deemed to satisfy this clause (b).
(c) The actions specified in clauses (a)(i) and (a)(iv) of this Section 7.06 must be approved by a majority of the Controlling Trustees, including the Independent Controlling Trustee.
(d) The transaction approval requirements (the “Transaction Approval Requirements”) set forth in clauses (i) through (vii) of Section 7.06(a) may only be amended by mutual agreement of the parties hereto and with the written consent of the Indenture Trustee (acting at the direction of the Requisite Majority), and shall not in any event be amended to reduce or circumscribe the delegation to the Servicer of the level of autonomy, authority and responsibility contemplated by the Transaction Approval Requirements with respect to the performance of the Services. The Servicer shall provide notice to the Indenture Trustee of any amendment to the Transaction Approval Requirements for inclusion of such notice by the Indenture Trustee in the next Annual Report.
Appears in 1 contract
Transaction Approval Requirements. (a) The Servicer shall not do any of the following without the express prior written approval of WEST:
(i) Except as required in accordance with the terms of any Lease or any other agreement with the Lessee or the Asset Transfer Agreement, and in any event in accordance with the terms and conditions of the Related Documents, sell (or enter into any commitment or agreement to sell) or otherwise transfer or dispose of any Engine.
(ii) Enter into any new Lease (or any renewal or extension of an existing Lease or other agreement with a Lessee) of any Engine if the Lease does not comply with the requirements of the Indenture.
(iii) Unless provided for in the then current Operating Budget or Asset Expenses Budgetapplicable Budgets, enter into any contract for the modification or maintenance of any Engine if the costs to be incurred thereunder by WEST or the relevant Subsidiary are not economically justifiable in light of then current and reasonably anticipated market conditions for used aircraft enginesAircraft Engines.
(iv) Subject to Section (e) of Section 4.02 of Schedule 2.02(a), enter into on behalf of WEST or any Subsidiary, any capital commitment or confirm any order or commitment (other than the issuance of Warehouse Notes under the Indenture) to acquire, or acquire on behalf of WEST or any Subsidiary, aircraft enginesAircraft Engines, except that the Servicer may enter into any such capital commitment or order or commitment to acquire an Additional a Replacement Engine or spare parts for an Engine so long as the same is provided for in the then applicable Operating Budget or Asset Expenses BudgetBudgets.
(v) Issue any guarantee on behalf of, or otherwise pledge the credit of WEST or any Subsidiary, other than any guarantee of any Subsidiary obligation by WEST or WEST FundingWEST.
(vi) Unless permitted by any other provision of this Section 7.06, enter into any agreement for services to be provided in respect of Engines by third parties the cost of which is to be borne by WEST and the Subsidiaries, except in each case (A) to the extent that the same is an Engine Expense provided for in the then applicable Operating Budget or Asset Expenses Budget Budgets, or (B) for third party service providers (including legal counsel) that would be used by the Servicer in the ordinary course of the Servicer’s business.
(vii) Incur on behalf of WEST or any Subsidiary any liability (actual or contingent) or cause any such liability (actual or contingent) to be incurred, except for a liability (A) contemplated in the then applicable Operating Budget or Asset Expenses BudgetBudgets, (B) pursuant to a transaction of a type which is subject to another Transaction Approval Requirement which Transaction Approval Requirement is satisfied or is otherwise authorized by such Transaction Approval Requirement or (C) incurred in the ordinary course of the business of WEST and the Subsidiaries.
(b) Any transaction entered into by the Servicer on behalf of WEST and the Subsidiaries shall be on an arm’s-length basis and on market terms, provided that any transaction approved by the Controlling Trustees shall be deemed to satisfy this clause (b).
(c) The actions specified in clauses (a)(i) and (a)(iv) of this Section 7.06 must be approved by a majority of the Controlling Trustees, including the Independent Controlling Trustee.
(d) The transaction approval requirements (the “Transaction Approval Requirements”) set forth in clauses (i) through (vii) of Section 7.06(a) may only be amended by mutual agreement of the parties hereto and with the written consent of the Indenture Trustee (acting at the direction of the Requisite MajorityControlling Party), and shall not in any event be amended to reduce or circumscribe the delegation to the Servicer of the level of autonomy, authority and responsibility contemplated by the Transaction Approval Requirements with respect to the performance of the Services. The Servicer shall provide notice to the Indenture Trustee of any amendment to the Transaction Approval Requirements for inclusion of such notice by the Indenture Trustee in the next Annual Report.
Appears in 1 contract
Transaction Approval Requirements. (a) The Consistent with the overall business objectives of the Persons within the Serviced Group with respect to the Aircraft Assets, and with the delegation to the Servicer by the Persons within the Serviced Group of a practicable and workable level of autonomy, responsibility and authority regarding the performance of the Services, the Servicer shall not do any of the following without the express prior written approval of WEST(or, in the case of paragraph (ix) below, prior written notice to) MSAF or the relevant Non-MSAF AOE if the action relates to an Aircraft Asset owned directly or indirectly by a Non-MSAF AOE:
(i) Except as required in accordance with the terms of any Lease or any other agreement with the Lessee or the Asset Transfer Agreement, and in any event in accordance with the terms and conditions of the Related DocumentsLessee, sell (or enter into any commitment or agreement to sell) or otherwise transfer or dispose of any Aircraft or any Engine.;
(ii) Enter into any new Lease (or any renewal or extension of an existing Lease or other agreement with a Lessee) of Aircraft Assets owned by any Engine Person within the MSAF Group if the such new Lease does shall not comply with the requirements applicable provision of any indenture or similar agreement binding MSAF or any Person within the MSAF Group and related to a Notes Offering (each such agreement, an "Indenture").
(iii) Terminate any Lease or Leases to any single Lessee with respect to any Aircraft having an aggregate depreciated net book value on the books of the relevant Person (or Persons) in the Serviced Group in excess of $100,000,000.
(iv) Unless provided for in the then current Operating Budget or Asset Expenses One Year Approved Budget, enter into any contract for the modification or maintenance of any Engine Aircraft Assets (A) if the costs to be incurred thereunder by WEST or the relevant Subsidiary are not economically justifiable AOE exceed the greater of (1) the estimated aggregate cost of a heavy maintenance "D" check for the airframe and a full restoration shop visit for the engines for Aircraft Assets of the type in light question and (2) the amount of then current and reasonably anticipated market conditions for used aircraft enginesthe available maintenance reserve or other collateral under the applicable Lease or (B) outside the ordinary course of the relevant AOE's business.
(ivv) Subject to Section (e) of Section 4.02 of Schedule 2.02(a), enter Enter into on behalf of WEST MSAF or any Subsidiaryof the AOEs, any capital commitment or confirm any order or commitment (other than the issuance of Warehouse Notes under the Indenture) to acquire, or acquire on behalf of WEST or any SubsidiaryAOE, aircraft engines, or; subject to Section (e) of Article 4 of Schedule 2.02
(a) engines with any aircraft or engine manufacturers except that the Servicer may enter into any such capital commitment or order or commitment to acquire an Additional Engine a replacement engine or spare parts part for an Engine Aircraft so long as the same is provided for in the then applicable Operating Budget or Asset Expenses One Year Approved Budget.
(vvi) Issue any guarantee on behalf of, or otherwise pledge the credit of WEST or any Subsidiary, other than any guarantee for borrowed money of any Subsidiary obligation by WEST or WEST FundingPerson within the Serviced Group.
(vivii) Unless permitted by any other provision of this Section 7.06, enter into any agreement for services to be provided in respect of Engines Aircraft Assets by third parties outside the ordinary course of ILFC's business, the cost of which is to be borne by WEST and any Person within the SubsidiariesServiced Group, except in each case (A) to the extent that the same is an Engine Asset Expense provided for in the then applicable Operating Budget or Asset Expenses Budget or (B) for third party service providers (including legal counsel) that would be used by the Servicer in the ordinary course of the Servicer’s businessOne Year Approved Budget.
(viiviii) Incur on behalf of WEST or any Subsidiary Person within the Serviced Group any liability (actual or contingent) or cause any such liability (actual or contingent) to be incurred, except for a liability (A) contemplated in the then applicable Operating Budget or Asset Expenses One Year Approved Budget, (B) pursuant to a transaction of a type which is subject to another Transaction Approval Requirement or which would be subject to another Transaction Approval Requirement is satisfied or is otherwise authorized by if the threshold set forth in such Transaction Approval Requirement were met or (C) incurred in the ordinary course of the business relevant AOE's business.
(ix) On behalf of WEST and any Person within the SubsidiariesServiced Group enter into, amend or grant a waiver with respect to any transaction with the Servicer or any of its Affiliates including without limitation for the acquisition, sale or lease of any Aircraft Assets from or to, or the obtaining or provision of services by, any such Person.
(b) Any transaction entered into by the Servicer on behalf of WEST and any Person within the Subsidiaries Serviced Group shall be on an arm’s-arm's length basis and on market terms, provided that any transaction approved unless otherwise agreed by such Person or MSAF, if such Person is a direct or indirect wholly owned subsidiary of MSAF, or directed by the Controlling Trustees shall be deemed to satisfy this clause (b)Serviced Group in accordance with Section 7.02.
(c) The actions specified in clauses (a)(i) and (a)(iv) of this Section 7.06 must be approved by a majority of the Controlling Trustees, including the Independent Controlling Trustee.
(d) The transaction approval requirements (the “"Transaction Approval Requirements”") set forth in clauses (i) through (vii) of this Section 7.06(a) 7.06 may only be amended by mutual agreement of the parties hereto and with the written consent of the Indenture Trustee (acting at the direction of the Requisite Majority)parties, and shall not in any event be amended to reduce or circumscribe the delegation to the Servicer of the level of autonomy, authority and responsibility contemplated by the Transaction Approval Requirements with respect to the performance of the Services. The Servicer shall provide notice to the Indenture Trustee of any amendment to the Transaction Approval Requirements for inclusion of such notice by the Indenture Trustee in the next Annual Report.
Appears in 1 contract
Sources: Servicing Agreement (Morgan Stanley Aircraft Finance)
Transaction Approval Requirements. (a) The Servicer shall not do any of the following without the express prior written approval of WESTthe Board of Directors of the Company (which approval shall not be given or made by the Company to the extent such approval would breach any covenant or agreement of the Company in the Indenture) and, in the case of clauses (vii) and (viii) of this Section 7.04(a), the Company shall have given the Servicer written copies of any required Policy Provider consent as provided in the Indenture:
(i) Except as otherwise required in accordance with the terms of any Lease or any other agreement with the Lessee or the Asset Transfer Purchase Agreement, and in any event in accordance with the terms and conditions of the Related Documents, sell (or enter into any commitment or agreement to sell) or otherwise transfer or dispose of any Aircraft (excluding any sale or exchange of any Engine, parts or components thereof or aircraft or engine spare parts or ancillary equipment or devices furnished therewith) forming part of the Aircraft Assets.
(ii) Enter into any new Lease (or any renewal or extension of an existing Lease, unless any such Lease being renewed or other agreement extended had previously been approved pursuant to this Section 7.04(a) or if any such Lease contains an extension option and such option is being exercised in accordance with a Lesseethe terms of such Lease) of any Engine Aircraft Assets if (A) the Lease does shall not comply with all the requirements applicable provisions of Sections 5.02 and 5.03 of the IndentureIndenture expressly applicable to the leasing of such Aircraft Assets as set forth in Section 2.1 of Schedule 2.02(a), (B) the Lease grants a purchase option in favor of the Lessee (it being agreed that a right of first refusal or right of first offer is not a purchase option for purposes hereof) or (C) the Lease permits the Lessee to assign its obligations without the consent of the Lessor.
(iii) Terminate any Lease or Leases to any single Lessee with respect to any Aircraft Assets (A) on or prior to the fifth anniversary of the Closing Date, then having an aggregate depreciated net book value on the books of the applicable Person(s) within the Company Group in excess of $100,000,000 and (B) after the fifth anniversary of the Closing Date, with respect to more than five Aircraft Assets per year, and, in either case, unless such Lease or Leases is substituted or replaced by another substantially similar Lease or Leases with respect to such Aircraft Assets or unless such termination is related to the exercise of remedies following an event of default under the applicable Lease.
(iv) Unless provided for in the then current Operating Approved Budget (including the provisions of Section 7.03(e)), (A) enter into any contract to make any capital expenditure for the purpose of effecting any optional improvement or Asset Expenses Budgetmodification of any Aircraft Asset, including any optional conversion thereof from passenger to a freighter or mixed use aircraft, except for capital expenditures made in the ordinary course of business in connection with the sale or lease of an Aircraft Asset, or (B) enter into any contract for the modification or maintenance of any Engine Aircraft Asset, in either event, if the costs to be incurred thereunder by WEST the applicable Person within the Company Group exceed the greater of (1) the estimated aggregate cost of the heaviest or most extensive maintenance check for the relevant Subsidiary are not economically justifiable airframe and a total refurbishment and full restoration shop visit of the engines for Aircraft Assets of the type in light question (and including the replacement of life limited parts) , in each case, based on then current prevailing industry rates in the United States or Europe, and reasonably anticipated market conditions for used aircraft engines.
(iv2) Subject to Section (e) the amount of Section 4.02 of Schedule 2.02(a), enter into on behalf of WEST the available Utilization Rent or any Subsidiary, any capital commitment other payments or confirm any order or commitment (other than the issuance of Warehouse Notes collateral under the Indenture) to acquireapplicable Lease and, or acquire on behalf of WEST or any Subsidiary, aircraft engines, except that the Servicer may enter into any such capital commitment or order or commitment to acquire an Additional Engine or spare parts for an Engine so long as the same is provided for in the then case of conversions, the amount in the applicable Operating Budget or Asset Expenses BudgetConversion Account.
(v) Issue any guarantee Guarantee on behalf of, or otherwise pledge the credit of WEST or any Subsidiary, (other than any guarantee of any Subsidiary obligation by WEST or WEST Funding.
(vi) Unless permitted by any other provision of this Section 7.06, enter into any agreement for services with respect to be provided in respect of Engines by third parties the cost of which is to be borne by WEST and the Subsidiaries, except in each case (A) to the extent that the same is an Engine Expense provided for in the then applicable Operating Budget or Asset Expenses Budget or (B) for third party service providers (including legal counsel) that would be used by the Servicer trade payables in the ordinary course of the ServicerCompany Group’s business), any Person within the Company Group, except (A) for guarantees by the Company or any other Person within the Company Group of the obligations of any other Person within the Company Group (including in connection with a Lease or the sale of an Aircraft Asset), (B) so long as the out-of-pocket cash payment or cash collateral deposit in respect thereof does not exceed $3,000,000 in any individual case (and not in excess of $20,000,000 in the aggregate at any time outstanding), any Lien or indebtedness created in favor of the issuer of a surety bond, letter of credit or similar instrument to be obtained by or for the benefit of any Person within the Company Group in connection with the detention or repossession of an Aircraft or enforcement action under a Lease or removal of a Lien and (C) with respect to instances in which the Servicer is seeking to repossess or otherwise protect an Aircraft Asset after an imminent default or an event of default under a Lease, (x) on or prior to the fifth anniversary of the Closing Date, in a notional amount or face value of bond or guaranty in excess of the Assumed Base Value (as defined in the Indenture) of such Aircraft Asset and, (y) thereafter, in a notional amount or face value of bond or guaranty in excess of the most recent appraised value of such Aircraft Asset as provided in Section 5.03(i) of the Indenture.
(vi) Except as specifically contemplated by Schedule 2.02(a), on behalf of any Person within the Company Group, enter into, amend or grant a waiver with respect to, any transaction with the Servicer or any of its Affiliates, including for the acquisition, sale or lease of any Aircraft Assets from or to, or the obtaining or provision of services by, any such Person (except for the acquisition, sale, exchange or lease of or services in respect of any Engine, parts or components thereof or aircraft or engine spare parts, components or ancillary equipment or devices furnished therewith).
(vii) Incur on behalf of WEST or any Subsidiary Person within the Company Group any liability (actual or contingent) or cause any such liability (actual or contingent) to be incurred, except for a liability (A) contemplated in the then applicable Operating Budget or Asset Expenses current Approved Budget, (B) pursuant arising out of, in connection with or related to a transaction of a type which is otherwise subject to another Transaction Approval Requirement which Transaction Approval Requirement approval under this Section 7.04 and is, in fact, so approved or, due to the existence of an exception, limitation or other carve out contained therein or in any definition therein, is satisfied or is otherwise authorized by such Transaction Approval Requirement or not subject to approval under the relevant provision of this Section 7.04, (C) incurred in the ordinary course of the business Company Group’s business, including, but not limited to, liabilities related to such matters specified in Schedule 7.04, (D) incurred pursuant to a Lease or sale of WEST an Aircraft Asset, in entering into the Lease or sale contract or performing any obligations as lessor or seller thereunder or (E) with respect to instances in which the Servicer is seeking to repossess or otherwise protect an Aircraft Asset after an imminent default or an event of default under a Lease, (x) on or prior to the fifth anniversary of the Closing Date, liabilities with maximum exposure (by way of notional amount, face value or otherwise) not to exceed the Assumed Base Value of such Aircraft Asset and, (y) thereafter, liabilities with a maximum exposure (by way of notional amount, face value or otherwise) not to exceed the most recent appraised value of such Aircraft Asset as provided in Section 5.03(i) of the Indenture; provided that the exception contained in clause (C) above is not intended to override any other restriction contained in this Agreement (other than this clause (vii)) relating to the incurrence of any liability referred to in such clause (C); and provided, further, that liabilities incurred pursuant to this clause (vii) (other than subclause (E) which shall not be subject to the Subsidiariesfollowing caps) after the fifth anniversary of the Closing Date shall not, without Company approval, exceed $1,000,000 per Aircraft Asset per year or $20,000,000 in the aggregate for all Aircraft Assets after the fifth anniversary of the Closing Date.
(viii) Enter into on behalf of the Company or any Person within the Company Group, any order or commitment to acquire, or acquire on behalf of the Company Group, (A) aircraft or (B) except as otherwise provided in Section 4(e) of Schedule 2.02(a), so long as no individual (and not aggregate) net (after credit for any exchanges, replacements or similar items) out-of-pocket cash expenditures exceeds $3,000,000, aircraft engines, except, in the case of aircraft engines (X) in accordance with any Lease or for the benefit of a Lessee pursuant to a Lease or (Y) to acquire a replacement engine for an Aircraft so long as the same is provided for in the then current Approved Budget; provided that no orders or commitment for engines shall, without Company approval, require net out-of-pocket cash expenditures in excess of $20,000,000 in the aggregate for all Aircraft Assets after the fifth anniversary of the Closing Date.
(b) Any transaction entered into by the Servicer on behalf of WEST and any Person within the Subsidiaries Company Group (other than with other Persons within the Company Group), including with the Servicer or any of its Affiliates, shall be on an arm’s-length basis and on fair market value terms, provided that any transaction approved unless otherwise agreed by the Controlling Trustees shall be deemed to satisfy this clause (b)Board of Directors of the Company on behalf of any such Person within the Company Group and, in the case of transactions with the Servicer or any of its Affiliates, the Policy Provider.
(c) The actions specified in clauses (a)(i) and (a)(iv) of this Section 7.06 must be approved by a majority of the Controlling Trustees, including the Independent Controlling Trustee.
(d) The transaction approval requirements (the “Transaction Approval Requirements”) set forth in clauses (i) through (vii) of this Section 7.06(a) 7.04 may only be amended by mutual agreement of the parties hereto and with the written consent of the Indenture Trustee (acting at the direction of the Requisite Majority)parties, and shall not in any event be amended to reduce reduce, or circumscribe the delegation to the Servicer of of, the level of autonomy, authority and responsibility contemplated by the Transaction Approval Requirements with respect to the performance of the Services. The Servicer shall provide notice to Any rejection by the Indenture Trustee Company of any amendment proposed transaction submitted to it by the Servicer pursuant to the Transaction Approval Requirements for inclusion shall only be applicable to such portions of any such proposed transaction as are specifically required to be approved as set forth in Section 7.04(a).
(d) The Company shall provide the Servicer with a response confirming its approval or rejection of any proposed transaction submitted to it by the Servicer as promptly as practicable following its receipt of a proposal from the Servicer and in any event not more than [five] Business Days after receipt of such notice by a proposal. In the Indenture Trustee event that the board of directors of the Company, a duly authorized committee thereof or the Administrative Agent fails to approve of any transaction with respect to which an approval is required pursuant to the Transaction Approval Requirements and in respect of which the next Annual ReportServicer has submitted a reasonably detailed written proposal, the Company shall provide a reasonably detailed written explanation for any such rejection to the Servicer simultaneously with notifying the Servicer of such rejection. The Servicer is not required to take any action with respect to any transaction for which approval was sought pending receipt of such explanation.
Appears in 1 contract
Transaction Approval Requirements. (a) The Servicer shall not do any of the following without the express prior written approval of WESTGenesis:
(i) Except as otherwise required in accordance with the terms of any Lease, sell (or enter into any agreement to sell) or otherwise dispose of any MSA Aircraft Asset (excluding any sale or exchange of any Engine, parts or components thereof or aircraft or engine spare parts or ancillary equipment or devices furnished therewith) forming part of the MSA Aircraft Assets; provided, however, that the Servicer may transfer title or another interest in an MSA Aircraft Asset, or cause them to be subject to a lease, (x) to or in favor of a trust or an entity for the purpose of registering the Aircraft under the laws of an applicable jurisdiction or for tax or other regulatory purposes so long as a MSA Person retains the beneficial or economic ownership of the Aircraft, (y) from such trust or entity to a MSA Person or (z) within or among Genesis and any MSA Person without limitation, or in any case as required in accordance with the terms of any Lease or any other agreement with in effect on the Lessee or the Asset Transfer Agreement, and in any event in accordance with the terms and conditions date of the Related Documents, sell (or enter into any commitment or agreement to sell) or otherwise transfer or dispose of any Engineacquisition thereof.
(ii) Enter into any new Lease (or any renewal or extension of an existing Lease, unless any such Lease being renewed or other agreement extended had previously been approved pursuant to this Section 7.04(a) or if any such Lease contains an extension option and such option is being exercised in accordance with a Lesseethe terms of such Lease) of any Engine MSA Aircraft Assets if the Lease does shall not comply with all the requirements applicable provisions of Financing Agreements applicable to the leasing of such MSA Aircraft Assets as set forth in Section 2.1 of Schedule 2.02(a) or if the Lease grants a purchase option in favor of the IndentureLessee (it being agreed that a right of first refusal or right of first offer is not a purchase option for purposes hereof).
(iii) Terminate any Lease or Leases to any single Lessee with respect to any MSA Aircraft Assets then having an aggregate depreciated net book value on the books of the applicable MSA Person(s) in excess of $100,000,000 unless such Lease or Leases is substituted or replaced by another substantially similar Lease or Leases with respect to such Aircraft Assets.
(iv) Unless provided for in the then current Operating Approved Budget (including the provisions of Section 7.03(e)), to make any capital expenditure for the purpose of effecting any optional improvement or Asset Expenses Budgetmodification of any MSA Aircraft Asset, including any optional conversion thereof from passenger to a freighter or mixed use aircraft, except for capital expenditures made in the ordinary course of business in connection with the sale or lease of a MSA Aircraft Asset, or enter into any contract for the modification or maintenance of any Engine MSA Aircraft Asset if the costs to be incurred thereunder by WEST the applicable MSA Person within the Genesis Group exceed the greater of (1) the estimated aggregate cost of the heaviest or most extensive maintenance check for the relevant Subsidiary are not economically justifiable airframe and a total refurbishment and full restoration shop visit of the engines for Aircraft Assets of the type in light question, in each case based on then prevailing industry rates in the United States or Europe, and (2) the amount of then current and reasonably anticipated market conditions for used aircraft engines.
(iv) Subject to Section (e) of Section 4.02 of Schedule 2.02(a), enter into on behalf of WEST the available utilization rent or any Subsidiary, any capital commitment other payments or confirm any order or commitment (other than the issuance of Warehouse Notes collateral under the Indenture) to acquire, or acquire on behalf of WEST or any Subsidiary, aircraft engines, except that the Servicer may enter into any such capital commitment or order or commitment to acquire an Additional Engine or spare parts for an Engine so long as the same is provided for in the then applicable Operating Budget or Asset Expenses BudgetLease.
(v) Issue any guarantee Guarantee on behalf of, or otherwise pledge the credit of WEST or any Subsidiary, (other than any guarantee of any Subsidiary obligation by WEST or WEST Funding.
(vi) Unless permitted by any other provision of this Section 7.06, enter into any agreement for services with respect to be provided in respect of Engines by third parties the cost of which is to be borne by WEST and the Subsidiaries, except in each case (A) to the extent that the same is an Engine Expense provided for in the then applicable Operating Budget or Asset Expenses Budget or (B) for third party service providers (including legal counsel) that would be used by the Servicer trade payables in the ordinary course of the ServicerGenesis Group’s business), any MSA Person, except for guarantees by Genesis or any other MSA Person of the obligations of any other MSA Person (including in connection with a Lease or the sale of a MSA Aircraft Asset), and, so long as the out-of-pocket cash payment or cash collateral deposit in respect thereof does not exceed $3,000,000 in any individual case (and not in the aggregate), any Lien or indebtedness created in favor of the issuer of a surety bond, letter of credit or similar instrument to be obtained by or for the benefit of any MSA Person in connection with the detention or repossession of a MSA Aircraft Asset or enforcement action under a Lease or removal of a Lien.
(vi) Except as specifically contemplated by Schedule 2.02(a), on behalf of any MSA Person, enter into, amend or grant a waiver with respect to, any transaction with GE Capital or any of its Affiliates (including GE and its Affiliates), including for the acquisition, sale or lease of any MSA Aircraft Assets from or to, or the obtaining or provision of services by, any such Person (except for the acquisition, sale, exchange or lease of or services in respect of any Engine, parts or components thereof or aircraft or engine spare parts, components or ancillary equipment or devices furnished therewith).
(vii) Incur on behalf of WEST or any Subsidiary other MSA Person any liability (actual or contingent) or cause any such liability (actual or contingent) to be incurred, except for a liability (A) contemplated in the then applicable Operating Budget or Asset Expenses current Approved Budget, (B) pursuant arising out of, in connection with or related to a transaction of a type which is otherwise subject to another Transaction Approval Requirement which Transaction Approval Requirement approval under this Section 7.04 and is satisfied in fact so approved or, due to the existence of an exception, limitation or other carve out contained therein or in any definition therein, is otherwise authorized by such Transaction Approval Requirement or not subject to approval under the relevant provision of this Section 7.04, (C) incurred in the ordinary course of the business Genesis Group’s business, including, but not limited to, liabilities related to such matters specified in Schedule 7.04 so long as no individual (and not aggregate) net out-of-pocket cash expenditure exceeds $3,000,000, or (D) incurred pursuant to a Lease or sale of WEST an Aircraft Asset, in entering into the Lease or sale contract or performing any obligations as lessor or seller thereunder; provided, however, that the exception contained in clause (C) above is not intended to override any other restriction contained in this Agreement (other than this clause (vii)) relating to the incurrence of any liability referred to in such clause (C).
(viii) Enter into on behalf of Genesis or any other MSA Person, any order or commitment to acquire, or acquire on behalf of the Genesis Group, aircraft or, except as otherwise provided in Section 4(e) of Schedule 2.02(a), so long as no individual (and not aggregate) net (after credit for any exchanges, replacement or similar items) out-of-pocket cash purchase price exceeds $3,000,000, aircraft engines, except in the case of aircraft engines (A) in accordance with any Lease or for the benefit of a Lessee pursuant to a Lease or (B) to acquire a replacement engine for an Aircraft so long as the same is provided for in the then current Approved Budget; provided, however, that, before the Servicer shall effect (or cause to be effected) any optional improvement or modification of any MSA Aircraft Asset not permitted pursuant to any of the foregoing clauses (i) through (viii), or effect any optional conversion of any MSA Aircraft Asset from a passenger aircraft to a freighter or mixed-use aircraft that is not expressly provided for in the Approval Budget or purchase or otherwise acquire any Engines or parts not permitted pursuant to any of the foregoing clauses (i) through (viii), the Servicer shall request that Genesis deliver to the Servicer a certificate certifying that such action will not violate any agreement to which such MSA Person is a party or by which it is bound, such certificate to be delivered to the Servicer within seven Business Days after such request therefor, and the SubsidiariesServicer shall not undertake such action pending receipt of such certificate.
(b) Any transaction entered into by the Servicer on behalf of WEST and the Subsidiaries any MSA Person (other than with other MSA Persons), including with GE or any of its Affiliates, shall be on an arm’s-length basis and on fair market value terms, provided that unless otherwise agreed by Genesis on behalf of any transaction approved by the Controlling Trustees shall be deemed to satisfy this clause (b)such MSA Person.
(c) The actions specified in clauses (a)(i) and (a)(iv) of this Section 7.06 must be approved by a majority of the Controlling Trustees, including the Independent Controlling Trustee.
(d) The transaction approval requirements (the “Transaction Approval Requirements”) set forth in clauses (i) through (vii) of this Section 7.06(a) 7.04 may only be amended by mutual agreement of the parties hereto and with the written consent of the Indenture Trustee (acting at the direction of the Requisite Majority)parties, and shall not in any event be amended to reduce reduce, or circumscribe the delegation to the Servicer of of, the level of autonomy, authority and responsibility contemplated by the Transaction Approval Requirements with respect to the performance of the Services. The Servicer shall provide notice to the Indenture Trustee Any rejection by Genesis of any amendment proposed transaction submitted to it by the Servicer pursuant to the Transaction Approval Requirements for inclusion shall only be applicable to such portions of any such proposed transaction as are specifically required to be approved as set forth in Section 7.04(a).
(d) Genesis shall provide the Servicer with a response confirming its approval or rejection of any proposed transaction submitted to it by the Servicer as promptly as practicable following its receipt of a proposal from the Servicer and in any event not more than three Business Days after receipt of such notice by a proposal. In the Indenture Trustee event that the board of directors of Genesis, a duly authorized committee thereof or the Administrative Agent fails to approve of any transaction with respect to which an approval is required pursuant to the Transaction Approval Requirements and in respect of which the next Annual ReportServicer has submitted a reasonably detailed written proposal, Genesis shall provide a reasonably detailed written explanation for any such rejection to the Servicer simultaneously with notifying the Servicer of such rejection. The Servicer is not required to take any action with respect to any transaction for which approval was sought pending receipt of such explanation.
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Transaction Approval Requirements. (a) The Servicer shall not do any of the following without the express prior written approval of WEST:
(i) Except as required in accordance with the terms of any Lease or any other agreement with the Lessee or the Asset Transfer an Acquisition Agreement, and in any event in accordance with the terms and conditions of the Related Documents, sell (or enter into any commitment or agreement to sell) or otherwise transfer or dispose of any EngineAsset (excluding any sale or exchange of spare parts or ancillary equipment or devices furnished therewith) forming part of the Assets; provided, however, that, the Servicer may transfer title or another interest in an Asset, or cause an Asset to be subject to a Lease: (A) to or in favor of a trust or an entity for the purpose of addressing tax, regulatory or other objectives under the laws of an applicable jurisdiction so long as a Person in the Serviced Group retains the beneficial or economic ownership of such Asset; (B) from such trust or entity to a Person within the Serviced Group or (C) within or among the Persons in the same Issuer Group without limitation (provided that a Person in such Issuer Group retains the beneficial or economic ownership of such Asset and related Lease); provided further that, unless the Servicer has been notified in writing that an Event of Default has occurred (or has been notified in writing that such Event of Default has been waived or has otherwise ceased to exist), the Servicer may enter into Part-Out Agreements, agreements for the leasing of engines and components or for the swapping of engines, if determined by the Servicer in good faith to be in the best interests of maximizing returns in respect of such Asset, subject always to the limitations on parting-out and consignments set forth in the Indenture.
(ii) Enter into any new Lease (or any renewal or extension of an existing Lease or other agreement with a Lessee) of any Engine Asset if the Lease does not comply with the requirements of the Indenture or amend any existing Lease in a manner that does not comply with the requirements of the Indenture.
(iii) Unless provided for in the then current Operating Budget or Asset Expenses Budget, enter into any contract for the modification or maintenance of any Engine if the costs to be incurred thereunder by WEST or the relevant Subsidiary are not economically justifiable in light of then current and reasonably anticipated market conditions for used aircraft engines.
(iv) Subject to Section (e) of Section 4.02 of Schedule 2.02(a), enter into on behalf of WEST or any Subsidiary, any capital commitment or confirm any order or commitment (other than the issuance of Warehouse Notes under the Indenture) to acquire, or acquire on behalf of WEST or any Subsidiary, aircraft engines, except that the Servicer may enter into any such capital commitment or order or commitment to acquire an Additional Engine or spare parts for an Engine so long as the same is provided for in the then applicable Operating Budget or Asset Expenses Budget.
(v) Issue any guarantee on behalf of, or otherwise pledge the credit of WEST or any Subsidiary, other than any guarantee of any Subsidiary obligation by WEST or WEST Funding.
(vi) Unless permitted by any other provision of this Section 7.06, enter into any agreement for services to be provided in respect of Engines by third parties the cost of which is to be borne by WEST and the Subsidiaries, except in each case (A) to the extent that the same is an Engine Expense provided for in the then applicable Operating Budget or Asset Expenses Budget or (B) for third party service providers (including legal counsel) that would be used by the Servicer in the ordinary course of the Servicer’s business.
(vii) Incur on behalf of WEST or any Subsidiary any liability (actual or contingent) or cause any such liability (actual or contingent) to be incurred, except for a liability (A) contemplated in the then applicable Operating Budget or Asset Expenses Budget, (B) pursuant to a transaction of a type which is subject to another Transaction Approval Requirement which Transaction Approval Requirement is satisfied or is otherwise authorized by such Transaction Approval Requirement or (C) incurred in the ordinary course of the business of WEST and the Subsidiaries.
(b) Any transaction entered into by the Servicer on behalf of WEST and the Subsidiaries shall be on an arm’s-length basis and on market terms, provided that any transaction approved by the Controlling Trustees shall be deemed to satisfy this clause (b).
(c) The actions specified in clauses (a)(i) and (a)(iv) of this Section 7.06 must be approved by a majority of the Controlling Trustees, including the Independent Controlling Trustee.
(d) The transaction approval requirements (the “Transaction Approval Requirements”) set forth in clauses (i) through (vii) of Section 7.06(a) may only be amended by mutual agreement of the parties hereto and with the written consent of the Indenture Trustee (acting at the direction of the Requisite Majority), and shall not in any event be amended to reduce or circumscribe the delegation to the Servicer of the level of autonomy, authority and responsibility contemplated by the Transaction Approval Requirements with respect to the performance of the Services. The Servicer shall provide notice to the Indenture Trustee of any amendment to the Transaction Approval Requirements for inclusion of such notice by the Indenture Trustee in the next Annual Report.
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