FOURTH AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT dated as of May 1, 2020 made by AEROCENTURY CORP. in favor of MUFG UNION BANK, N.A. as Agent for itself and the Lenders
EXHIBIT 10.2
FOURTH AMENDED AND RESTATED
dated as of
May 1, 2020
made by
in favor of
MUFG UNION BANK, N.A.
as Agent for itself
and the
Lenders
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0A22-152811
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TABLE OF CONTENTS
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Fourth
Amended and Restated
Mortgage
& Security Agreement
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0A22-152811
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FOURTH AMENDED AND RESTATED
THIS FOURTH AMENDED AND RESTATED MORTGAGE AND
SECURITY AGREEMENT, dated as of May 1, 2020 (this
"Mortgage"), is
made by AEROCENTURY CORP., a Delaware corporation (together with
its successors and assigns, "Borrower"), with its chief
executive office and chief place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ in favor of MUFG UNION BANK, N.A.
(formerly Union Bank, N.A.), as agent for itself and the Lenders as
described in the Loan Agreement referred to below (MUFG Union Bank,
N.A. in its capacity as agent for itself and the Lenders, together
with its successors and assigns, "Mortgagee").
W I T N ES S E T H:
WHEREAS, pursuant to that certain Loan
and Security Agreement dated as of April 28, 2010, (as amended, the
“Original Loan
Agreement”), the financial institutions as lender
parties thereto (collectively, the “Original Lenders”) and
Union Bank, N.A., as administrative agent for itself and the
Original Lenders, made available to Borrower a revolving credit
facility for the purposes set forth in the Original
Agreement.
WHEREAS, the Original Loan Agreement was
amended and restated pursuant to that certain Amended and Restated
Loan and Security Agreement dated as of March 13, 2013 (the
“First Amended and
Restated Loan Agreement”), among Borrower, the
financial institutions as lender parties thereto (collectively, the
“First A&R
Lenders”) and Union Bank, N.A., as administrative
agent for itself and the First A&R Lenders; by that certain
Second Amended and Restated Loan and Security Agreement dated as of
May 30, 2014 (the “Second Amended and Restated Loan
Agreement”), among Borrower, the financial
institutions as lender parties thereto (collectively, the
“Second A&R
Lenders”) and Union Bank, N.A., as administrative
agent for itself and the Second A&R Lenders; and by that
certain Third Amended and Restated Loan and Security Agreement
dated as of February 19, 2019, among Borrower, the financial
institutions as lender parties thereto (collectively, the
“Third A&R
Lenders”) and MUFG Union Bank, N.A., as administrative
agent for itself and the Third A&R Lenders (as so amended, the
“Third Amended and
Restated Loan Agreement”).
WHEREAS, in connection with the Original
Loan Agreement, the First Amended and Restated Loan Agreement, the
Second Amended and Restated Loan Agreement, and the Third Amended
and Restated Loan Agreement, Borrower and Mortgagee entered into
that certain Mortgage and Security Agreement dated as of April 28,
2010, as amended and restated by that certain Amended and Restated
Mortgage and Security Agreement dated as of June 17, 2013, by that
certain Second Amended and Restated Mortgage and Security Agreement
dated as of May 30, 2014, and as further amended and restated by
that certain Third Amended and Restated Mortgage and Security
Agreement dated as of February 19, 2019 (as further supplemented
and amended from time to time, as described on Exhibit A attached hereto, collectively,
the “Security
Agreement”).
WHEREAS, concurrently herewith,
Borrower, MUFG Union Bank, N.A., as Lender, together with any other
Lenders under the Loan Agreement (defined hereafter) from time to
time (collectively, the "Lenders") and MUFG Union Bank,
N.A., as Agent, are entering into that certain Fourth Amended and
Restated Loan and Security Agreement, dated as of the date hereof
(as amended, restated, modified or supplemented from time to time,
the "Loan
Agreement"), which Loan Agreement shall amend and restate in
full the Third Amended and Restated Loan Agreement.
WHEREAS, in connection with the Loan
Agreement, the parties hereto desire to and hereby do amend and
restate the Security Agreement in its entirety by this
Mortgage.
WHEREAS, as a condition to the making of
the Loans under the Loan Agreement, Borrower must provide
collateral security to secure the prompt payment and performance of
all Obligations (referred to herein collectively as the
"Secured
Obligations"), for the ratable benefit of the Lenders, which
collateral includes, without limitation, the Collateral (as defined
herein); and
NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein contained, the parties
hereto covenant and agree as follows:
ARTICLE 1.
.
Capitalized terms used in this Mortgage which are not otherwise
defined herein shall have the respective meanings ascribed to them
in the Loan Agreement. The following terms shall have the following
defined meanings (and shall be applicable to both the singular and
the plural forms of such terms):
"Acknowledgement" shall mean the
Lessee Acknowledgement and Consent executed by each Lessee whereby,
among other things, Lessee acknowledges receipt of the Quiet
Enjoyment Letter executed by Mortgagee.
"Act" shall mean the United
States Federal Aviation Act of 1958, as amended, as in effect on
the date of this Mortgage, as recodified in 49 U.S.C. §§
40101 et seq., as amended, or any successor or substituted
legislation at the time in effect and applicable.
"Airframe" means each airframe
purchased by Borrower described in Exhibit B or in a Mortgage Supplement
hereto, together with any and all Parts which are either
incorporated or installed in or attached to such airframe or
required to be subject to the lien and security interest of this
Mortgage.
"APU" means, whether or not
installed on the Aircraft, the auxiliary power unit of the
manufacture and model described in Exhibit B or in a Mortgage Supplement
hereto, together with any and all modules and Parts which are
either incorporated or installed from time to time in or attached
to such APU.
"Cape Town Convention" means the
Convention on International Interests in Mobile Equipment and the
Protocol to the Convention on International Interests in Mobile
Equipment on Matters Specific to Aircraft Equipment, both of which
were signed in Cape Town, South Africa on November 16, 2001, and
including the Regulations for the International Registry and the
Procedures for the International Registry, as promulgated
thereafter.
"Collateral" shall have the
meaning set forth in the Granting Clause (Article 2)
hereof.
"Convention" means the Cape Town
Convention, the Protocol, and related regulations and procedures,
with an effective date in the United States of March 1,
2006.
"Default" means any event
specified in Section 4.01 hereof, whether or not any requirement
for the giving of notice, the lapse of time, or both or for the
happening of any other condition, event or act has been
satisfied.
"Engine" means each engine
described in Exhibit B or in
a Mortgage Supplement hereto (each of which has 550 or more rated
takeoff horsepower or the equivalent of such horsepower), together
with any and all Parts which are either incorporated or installed
in or attached to such engine or required to be subject to the lien
and security interest of this Mortgage.
"Event of Default" means any of
the events specified in Section 4.01 hereof, provided that any
requirement for the giving of notice, the lapse of time or both for
the happening of any other condition, event or act has been
satisfied.
"International Registry" means
the international registry created pursuant to the
Convention.
"Lease" means any "Lease" as
such term is defined in the Loan Agreement, of the Collateral now
existing or hereafter arising, including, but not limited to, each
of the lease agreements described in Exhibit C hereto and in the Mortgage
Supplement(s) hereto, upon which Borrower is the lessor or an
assignee of the lessor as the same may be modified, amended or
supplemented from time to time.
"Lease Event of Default" means
an Event of Default as defined in a given Lease.
"Lessee" means, with respect to
a given Lease, the "Lessee" as defined therein.
"Lien" means any mortgage,
pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge or encumbrance, lease, right of others or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same legal
effect as any of the foregoing (e.g., a lease which would be
treated as a security agreement)), and, as applicable, the filing
of, or consent or agreement to give, any financing statement or
comparable document, or record or register any such document or
interest under the Act or the Convention.
"Mortgage" means this Fourth
Amended and Restated Mortgage and Security Agreement, as the same
may be amended, modified or supplemented from time to time
(including by means of one or more Mortgage
Supplements).
"Mortgage Supplement" means a
Mortgage Supplement, substantially in the form of Exhibit D hereto.
"Parts" means, at any time, all
parts, components, equipment, instruments, propellers, landing
gear, appliances, avionics, radio and radar devices, cargo handling
systems and loose equipment that are at such time incorporated or
installed in or attached to an Airframe, Engine or
APU.
"Permitted Lessee" means, with
respect to a given Lease, the Lessee thereunder and any substitute
Lessee which is acceptable to Mortgagee.
"Proceeds" means whatever is
receivable or received when the Airframe or any Engine or any APU
or any Part or any Spare Part or other collateral is sold,
exchanged, collected or otherwise disposed of, including, without
limitation, all amounts payable or paid under insurance,
requisition or other payments as the result of any loss (including
an Event of Loss) or damage to such Airframe or Engine or APU or
Part or Spare Part.
"Protocol" shall mean the
Protocol to the Convention on International Interests in Mobile
Equipment on Matters Specific to Aircraft Equipment, adopted
contemporaneously and as a part of the Cape Town
Convention.
"Records" shall have the meaning
set forth in the Granting Clause (Article 2) hereof.
"Security Deposit" means, with
respect to a given Lease, the "Security Deposit" as such term is
defined in such Lease.
"Spare Part" means an accessory,
appurtenance or part of an Airframe (except an Engine) or appliance
that is to be installed at a later time in an Airframe, Engine,
APU, or appliance as described in Exhibit B or in a Mortgage Supplement
hereto.
Notwithstanding
anything to the contrary herein the following terms, when
capitalized herein, shall have the meanings set forth in the
Convention: "administrator," "aircraft object", "contracting
state," "contract of sale," "international interest," "professional
user," "searchable," and "situated in".
ARTICLE 2.
Borrower hereby
assigns, mortgages, transfers and confirms unto Mortgagee, and
hereby grants to Mortgagee, a first priority security interest in,
all right, title and interest of Borrower in and to the following
property, whether now owned or hereafter acquired, and all
replacements of the following property as collateral security for
the prompt and complete payment and performance when due of all the
Secured Obligations (herein collectively called the "Collateral") to
wit:
(a) each Airframe,
Engine, APU and all Parts and Spare Parts;
(b) all of Borrower's
right, title and interest in and to any Lease of an Airframe, an
Engine or APU and any Parts and Spare Parts, including, without
limitation, each Lease together with all schedules, supplements,
amendments, modifications, extensions, renewals of or replacements
for any such Lease, executed from time to time, and all payments,
including, without limitation, all payments of rent, each Security
Deposit, and maintenance reserves, and all proceeds thereof,
insurance proceeds and all other amounts due or to become due
thereunder;
(c) all records, logs
and other materials required to be maintained with respect to each
Airframe, Engine, APU, Parts or Spare Parts pertaining thereto by
Persons in operational control of item(s) under any applicable
Law(s) and all logs, books, maintenance records and other
information otherwise relating to each such item of Collateral
(collectively, the "Records") as well as all right,
title and interest of Borrower in, to and under the overhaul,
repair and maintenance manuals, programs and catalogues which are
part of or used in connection with the maintenance program for such
Airframe, Engine, APU, Parts or Spare Parts pertaining
thereto;
(d) all Associated
Rights in connection with any agreement secured by or associated
with any Airframe, Engine, APU, Parts or Spare Parts;
and
(e) all Proceeds of all
or any of the foregoing.
ARTICLE 3.
Borrower, at its
own cost and expense, will, (a) prior to mortgaging an Airframe,
(i) register with the International Registry, if applicable, or
complete such other registration necessary under Applicable Law,
the ownership interest of Borrower in each Airframe and (ii) cause
each Airframe to be duly registered and at all times thereafter
remain duly registered in the name of Borrower in accordance with
the Act, if applicable, or other Applicable Law; (b) at all times
maintain, service, repair, overhaul and test or cause to be
maintained, serviced, repaired, overhauled and tested each Engine,
APU, Part and Spare Part so as to keep the same in as good
operating condition as when originally mortgaged hereunder,
ordinary wear and tear excepted, and, in any event in the condition
required by the relevant Lease; and (c) maintain or cause to be
maintained (in the English language) all Records.
(a) Borrower will
promptly, and in any event no more than five (5) Business Days
after such action is required or requested, take, or cause to be
taken, at Borrower's cost and expense, such action with respect to
the execution, delivery, recording, registration, filing,
re-recording, re-registration and refiling of this Mortgage and any
financing statements, Mortgage Supplements or other instruments as
are necessary or desirable, or that Mortgagee may from time to time
request, to fully carry out the intent and purpose of this Mortgage
or to establish, protect, preserve and/or perfect the Liens created
by this Mortgage, and will furnish to Mortgagee (i) timely notice
of the necessity of any such action, together with such
instruments, in execution form, and such other information as may
be required to enable Mortgagee to take such action and (ii)
evidence of every such action taken by Borrower.
(b) The Convention. If the
Convention applies to the Collateral, (i) Borrower shall establish
a valid and existing account with the International Registry,
appoint an Administrator and/or a Professional User acceptable to
Mortgagee to make registrations in regard to the Collateral, and
take the steps to initiate the registration of an International
Interest in favor of the Mortgagee, with all such steps being
completed except for the consent of Mortgagee; (ii) Borrower shall
make reasonable efforts to register Borrower's Contract of Sale
such that it shall be searchable in the International Registry, and
(iii) Borrower shall execute and Mortgagee shall have received a
fully completed and originally executed Irrevocable De-Registration
and Export Request Authorization ("IDERA"), in the form required
by the Protocol and acceptable to the Mortgagee and attached hereto
as Exhibit E.
(c) Convention Representations and
Warranties. At the execution and delivery of this Mortgage
by Borrower, Borrower was Situated In a Contracting State and has
the Power to Dispose of the Collateral as those phrases are used in
the Convention. To the extent the Collateral is subject to the
Convention, Borrower represents that (i) this Mortgage creates and
constitutes an International Interest in the Collateral; (ii) each
Airframe and Engine constitutes an Aircraft Object, (iii) this
Mortgage constitutes a Security Agreement and the interest created
hereunder is eligible for registration with the International
Registry relating to the Airframe or Engine and (v) this Mortgage
constitutes an assignment of associated rights secured by or
associated with the Airframes and Engines and the Mortgagee hereby
acknowledges and agrees that such assignment shall be effective to
assign any related International Interests in the Airframe for all
purposes of the Cape Town Convention.
Borrower hereby
confirms, represents and warrants that no further action, including
any filing or recording of any document (including any financing
statement in respect thereof under Article 9 of the Uniform
Commercial Code of any applicable jurisdiction), is necessary or
advisable to establish as against third parties the perfected first
priority Lien of the Mortgagee on Borrower's interest in each
Airframe, Engine, APU, Parts or Spare Parts pertaining thereto or
any Lease and in order to properly file, register and record this
Mortgage, the International Interest of the Mortgagee under the
Mortgage, the assignment of International Interest of Mortgagee
under the Lease, or the International Interest of the Lessor in
each Airframe and Engine under the Lease, in any applicable
jurisdiction in the United States. Borrower agrees to furnish
Mortgagee with copies of all documents relating to the foregoing
and with recording and registration data as promptly as practicable
following the issuance of the same by the FAA and the International
Registry.
Borrower will not
create or suffer to exist any Lien upon or with respect to any of
the Collateral, except for Permitted Liens.
Borrower shall
faithfully keep complete and accurate books and records and make
all necessary entries therein to reflect the quantities, costs,
current values and locations of all the Collateral, the events and
transactions giving rise thereto and all payments, credits and
adjustments applicable thereto, shall keep Mortgagee fully and
accurately informed as to the locations of all such books and
records and shall permit Mortgagee's agents to have such access to
them and to any other records pertaining to Borrower's business as
Mortgagee may request from time to time. In addition, Borrower
agrees to permit Mortgagee to visit the property of Borrower to
inspect any Airframe, Engine, APU, Parts or Spare Parts, and in the
case of any such items that are subject to a Lease, to the extent
permitted under a given Lease, to arrange for Lessee to permit
Mortgagee to inspect all items of Collateral. All inspections
completed by Mortgagee pursuant to this Section 3.04 shall occur
during normal business hours and upon reasonable prior notice to
Borrower or Lessee (unless a Default or Event of Default has
occurred and is continuing hereunder or under any Lease, in which
event no notice shall be required and Mortgagee shall have access
at any and all times). Borrower shall make available to Mortgagee
and its counsel, as quickly as practicable under the circumstances,
originals or copies of all of Borrower's books and records and any
other instruments and documents which Mortgagee may reasonably
request. Borrower shall deliver any document or instrument
reasonably necessary for Mortgagee, as it may from time to time
request, to obtain records from any service bureau, Governmental
Authority, or other Person that maintains records for
Borrower.
If any
item or unit of the Collateral is now or hereafter the subject of a
certificate of title or is required by law so to be, Borrower will
promptly procure the necessary certificate of title and take all
steps necessary to cause Mortgagee's Lien or security interest
therein to be noted on the face of such certificate and undertake
such other steps as may be necessary to assure that Mortgagee has a
first priority, perfected security interest in each such item or
unit of the Collateral and shall thereafter deposit the original of
such certificate of title with Mortgagee.
Borrower shall
immediately, and in any event within five (5) Business Days, notify
Mortgagee of any event causing any deterioration, loss or
depreciation in value of any substantial portion of the Collateral
and Borrower's best estimate of the amount of such deterioration,
loss or depreciation.
(a) Borrower shall bear
the risk of each Airframe, Engine, APU, Part or Spare Part being
lost, destroyed, irreparably damaged or rendered permanently unfit
for sale, lease or use or being damaged in part, from any cause
whatsoever at any time during the term of this Mortgage, and shall
at its own cost and expense obtain and keep in full force and
effect, in kind and form reasonably satisfactory to Mortgagee, or
in the alternative shall cause Lessee under each applicable Lease
to do the same with respect to each Airframe, Engine, APU, Part or
Spare Part subject to Lessee's Lease, all risk of physical loss or
damage insurance covering the Airframe, Engine, APU, Part or Spare
Part wherever the same may be located, insuring against the risks
of fire, explosion, theft and such other risks as are customarily
insured against by organizations engaged in the same business and
similarly situated as Borrower (and specifically including
vandalism and malicious mischief coverage), in an amount usually
carried by organizations engaged in the same business or similarly
situated as Borrower. All such policies of insurance shall be
written for the benefit of Borrower as the insured, and Mortgagee
shall be named as an additional insured on liability insurance and
Mortgagee shall be named as a loss payee or contract party on hull
insurance, as applicable. Notwithstanding the foregoing or anything
to the contrary herein, to the extent any Airframe, Engine, APU,
Parts or Spare Parts pertaining thereto included in the Collateral
hereunder is included in the Borrowing Base, Borrower shall comply
with all insurance requirements set forth in the Loan
Agreement.
(b) If Borrower or the
applicable Lessee fails to pay any premium on any such insurance,
Mortgagee shall have the right, but shall be under no obligation,
to pay such premium for Borrower's account. Borrower shall repay to
Mortgagee on demand all sums which Mortgagee shall have paid under
this Section 3.07 in respect of insurance premiums, with interest
thereon and Borrower's liability to Mortgagee for such repayment
with interest shall be included in the Secured Obligations.
Borrower hereby assigns to Mortgagee any return or unearned premium
which may be due upon the cancellation for any reason whatsoever of
any policy of insurance maintained in respect of the Collateral and
hereby directs the insurer to pay Mortgagee any amount so due.
Borrower's right to receive payment of any such return or unearned
premium and the proceeds of any such insurance shall constitute a
part of the Collateral for all purposes hereof. If no Event of
Default has occurred, Mortgagee shall pay any such return or
unearned premium to Borrower, provided that all amounts paid by
Mortgagee in respect of insurance premiums have been repaid in full
with interest.
(a) In addition to any
and all rights under this Mortgage and the other Loan Documents, at
any time after the occurrence and continuance of an Event of
Default, Mortgagee may, at any time in Mortgagee's own name or in
the name of Borrower, (i) communicate with Account Debtors, parties
to Contracts and Leases, and obligors in respect of Instruments,
Chattel Paper or other Collateral to verify to Mortgagee's
satisfaction the existence, amount and terms of any such Accounts,
Contracts, Instruments, Chattel Paper, Leases or other Collateral,
and (ii) without prior notice to Borrower, notify Account Debtors,
parties to Contracts, parties to Leases, and obligors in respect of
Chattel Paper, Instruments, or other Collateral that such
Collateral has been assigned to Mortgagee and that payments shall
be made directly to Mortgagee. Upon the request of Mortgagee,
Borrower shall so notify such Account Debtors, parties to
Contracts, parties to Leases, and obligors in respect of
Instruments, Chattel Paper, Leases or other
Collateral.
(b) It is expressly
agreed by Borrower that Borrower shall remain liable under each
Contract, License and Lease to observe and perform all the
conditions and obligations to be observed and performed by it
thereunder, and Mortgagee shall have no obligation or liability
whatsoever to any Person under any Contract, License or Lease
(between Borrower, Equipment Owner and any Person other than
Mortgagee) by reason of or arising out of the execution, delivery
or performance of this Mortgage, and Mortgagee shall not be
required or obligated in any manner (i) to perform or fulfill any
of the obligations of Borrower thereunder, (ii) to make any payment
or inquiry, or (iii) to take any action of any kind to collect or
enforce any performance or the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time
or times under or pursuant to any Contract, License or
Lease.
(c) Upon the occurrence
and during the continuance of an Event of Default, Borrower, at its
own expense, shall cause its independent certified public
accountants to prepare and deliver to Mortgagee at any time and
from time to time, promptly upon Mortgagee's request: (i) a
reconciliation of all Accounts; (ii) an aging of all Accounts;
(iii) trial balances; and (iv) test verifications of such Accounts
as Mortgagee may request. Borrower, at its own expense, shall cause
its independent certified public accountants to deliver to
Mortgagee the results of (x) any physical verifications of all or
any portion of the Collateral made or observed by such accountants,
and (y) any verifications of Borrower's Accounts, in each case when
and if any such verifications are conducted. Mortgagee shall be
permitted to observe and consult with Borrower and Borrower's
certified public accountants in the performance of these
tasks.
The
provisions of this Mortgage shall to the extent permitted by
Applicable Law remain in full force and effect and continue to be
effective even if: (a) any petition is filed by or against Borrower
for liquidation or reorganization; (b) Borrower becomes insolvent
or makes an assignment for the benefit of creditors; (c) a receiver
or trustee is appointed for all or any significant part of
Borrower's assets; or (d) at any time payment and performance of
the Secured Obligations, or any part thereof, is, pursuant to
Applicable Law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee of the Secured Obligations,
whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Secured Obligations
and Mortgagee's Liens in the Collateral shall be reinstated and
deemed reduced only by any amount paid and not so rescinded,
reduced, restored or returned.
(a) Borrower warrants:
(a) it is and will be the lawful owner of all Collateral free of
all Claims, Liens, encumbrances and setoffs whatsoever, other than
the security interest granted pursuant hereto; (b) it has the
capacity to grant a security interest in Collateral to Mortgagee;
(c) all information furnished by Borrower to Mortgagee heretofore
or hereafter, whether oral or written, is and will be correct and
true as of the date given; and (d) the execution, delivery and
performance hereof are within its powers and have been duly
authorized.
ARTICLE 4.
(a) Borrower shall be
in default upon the occurrence of any one of the following events
(each an "Event of
Default"):
(i) Borrower shall fail
to pay any amount payable in respect of any Secured Obligations
when due (including the expiration of any applicable grace
periods);
(ii) any representation,
warranty or information herein, heretofore or hereafter furnished
to Mortgagee by Borrower in connection with any of the Secured
Obligations, including any warranty made by Borrower through the
submission of any schedule, statement, certificate or other
document pursuant to or in connection with this Mortgage, shall be
false or misleading in any material respect; or
(iii) there shall exist
any Event of Default as defined under the Loan
Agreement.
Upon
the occurrence of any Event of Default, Mortgagee, at its option,
may exercise any rights and remedies provided to Agent under the
Loan Agreement and/or available at law or equity, including all
rights and remedies provided under the Uniform Commercial Code or
the Convention in any jurisdiction where enforcement is sought,
which include but are not limited to, the following: (i) without
notice accelerate the maturity of any part or all of the Secured
Obligations and terminate any agreement for the granting of further
credit to Borrower; (ii) sell, lease or otherwise dispose of
Collateral at public or private sale; (iii) transfer any Collateral
into its own name or that of its nominee; (iv) retain Collateral in
satisfaction of the Secured Obligations, with notice of such
retention sent to Borrower as required by law; (v) notify any
parties obligated on any Collateral consisting of Accounts,
Instruments, Chattel Paper, chooses in action or the like to make
payment to Mortgagee and enforce collection of any Collateral; (vi)
file any action or proceeding which Mortgagee deems necessary or
appropriate to protect and preserve the right, title and interest
of Mortgagee in the Collateral; (vii) exercise its banker's lien or
right of setoff in the same manner as though the credit were
unsecured and (viii) apply all or a portion of sums received or
collected from or on account of Collateral, including the proceeds
of any sales thereof, to the payment of the costs and expenses
incurred in preserving and enforcing rights of Mortgagee including
reasonable attorneys' fees (including the reasonably allocated
costs of Mortgagee's in-house counsel, but in no event including
general overhead and administrative expenses or expenses in excess
of the cost of work if performed by comparable outside counsel),
and after application of such sums to the Secured Obligations as
set forth in the Loan Agreement, Mortgagee shall account to
Borrower for any surplus remaining thereafter, and shall pay such
surplus to the party entitled thereto, including any second secured
party who has made a proper demand upon Mortgagee and has furnished
proof to Mortgagee as requested in the manner provided by law; in
like manner, Borrower agrees to pay to Mortgagee without demand any
deficiency after any Collateral has been disposed of and proceeds
applied as aforesaid.
(b) The exercise by
Mortgagee of any one right or remedy shall not be deemed a waiver
or release of or any election against any other right or remedy,
and Mortgagee may proceed against Borrower and the Collateral and
any other collateral granted by Borrower to Mortgagee under any
other agreement, all in any order and through any available
remedies. A waiver on any one occasion shall not be construed as a
waiver or bar on any future occasion. All property of any kind held
at any time by Mortgagee as Collateral shall stand as one general
continuing collateral security for all the Secured Obligations and
may be retained by Mortgagee as security until all the Secured
Obligations are fully satisfied.
Upon an
Event of Default, Mortgagee may, without notice, take possession of
the whole or any part of any Airframe, Engine, APU, Parts or Spare
Parts and may exclude Borrower, and all persons claiming under
Borrower, wholly or partly therefrom. At the request of Mortgagee,
Borrower shall promptly deliver or cause to be delivered to
Mortgagee or to whomsoever Mortgagee shall designate, at such time
or times and place or places as Mortgagee may specify any item of
Collateral specified by Mortgagee. In addition, Borrower will
provide, without cost or expense to Mortgagee, storage facilities
for such Airframe, Engine, APU, Parts or Spare Parts and will cause
such Airframe, Engine, APU, Parts or Spare Parts to be maintained
as required by the terms hereof and of the Loan Agreement. If
Borrower shall for any reason fail to deliver such Airframe,
Engine, APU, Parts or Spare Part or any part thereof after demand
by Mortgagee, Mortgagee may, without being responsible for loss or
damage, except to the extent caused by the gross negligence or
willful misconduct of Mortgagee, (a) obtain a judgment conferring
on Mortgagee the right to immediate possession or requiring
Borrower to deliver immediate possession of all or part of such
Airframe, Engine, APU, Parts or Spare Part to Mortgagee, to the
entry of which judgment Borrower hereby specifically consents, or
(b) with or, to the fullest extent provided by law, without such
judgment, pursue the whole or any part of such Airframe, Engine,
APU, Part or Spare Part wherever it may be found and enter any of
the premises where such Airframe, Engine, APU, Parts or Spare Part
may be and take possession of and remove the same. Upon every such
taking of possession, Mortgagee may (but shall not be obligated
to), from time to time, make all such reasonable expenditures for
maintenance, insurance, repairs, replacements, alterations,
additions and improvements to and of the Airframe, Engine, APU,
Part or Spare Part as Mortgagee may deem proper, which amounts
shall be reimbursed in accordance with Section 4.05.
Mortgagee shall be
entitled, as a matter of right as against Borrower, without notice
or demand and without regard to the adequacy of the security for
the Secured Obligations by virtue of this Mortgage or any other
Collateral or to the solvency of Borrower, upon the commencement of
judicial proceedings by it to enforce any right under this
Mortgage, to the appointment of a receiver of all or any part of
the Collateral.
(a) Upon an Event of
Default, Mortgagee, with or without taking possession of an
Airframe, Engine, APU, Part or Spare Part, may:
(i) to the extent and
in the manner permitted by law, sell at one or more public or
private sales, as an entirety or in separate lots or parcels, the
whole or any part of such Airframe, Engine, APU, Part or Spare
Part, at such place or places and at such time or times and upon
such terms, including terms of credit (which may include the
retention of title by Mortgagee to the property so sold), as
Mortgagee may determine, whether or not such Airframe, Engine, APU,
Part or Spare Part shall be at the place of sale; and
(ii) proceed to protect
and enforce its rights under this Mortgage by suit, whether for
specific performance of any covenant herein contained or in aid of
the exercise of any power herein granted or for the foreclosure of
this Mortgage and the sale of the Collateral under the judgment or
decree of a court of competent jurisdiction or for the enforcement
of any other right.
(b) At any public sale
of such Airframe, Engine, APU, Part or Spare Part or any Part
thereof by Mortgagee pursuant to Section 4.04(a)(i) above,
Mortgagee may consider and accept bids requiring the extension of
credit to the bidder and may determine the highest bidder at such
sale, whether or not the bid of such bidder shall be solely for
cash or shall require the extension of credit.
(c) Mortgagee, to the
extent permitted by law, may from time to time adjourn any sale
under Section 4.04(a)(i) above by announcement at the time and
place appointed for such sale or for any adjournment thereof and
without further notice or publication, except as may be required by
law, such sale to be made at the time and place to which the same
shall have been so adjourned.
(d) Upon the completion
of any sale under Section 4.04(a)(i) above, full title and right of
possession to the Airframe, Engine, APU, Part or Spare Part so sold
shall (subject to any retention of title by Mortgagee as part of
the terms of such sale) pass to the accepted purchaser forthwith
upon the completion of such sale, and Borrower shall deliver, in
accordance with the instructions of Mortgagee (including causing
the Engine, APU, Part or Spare Part to be flown to such airports as
Mortgagee may specify), such Airframe, Engine, APU, Part or Spare
Part so sold. If Borrower shall for any reason fail to deliver such
Airframe, Engine, APU, Part or Spare Part, Mortgagee shall have all
of the rights granted by Section 4.02 hereof. Mortgagee is hereby
irrevocably appointed the true and lawful attorney of Borrower, in
its name and stead, to make all necessary conveyances of an
Airframe, Engine, APU, or Part or Spare Part if so sold.
Nevertheless, if so requested by Mortgagee or by any purchaser,
Borrower shall confirm any such sale or conveyance by executing and
delivering all proper instruments of conveyance or releases as may
be designated in any such request.
(e) Borrower hereby
covenants and agrees that a notice, which shall be sent in
accordance with the provisions of the Loan Agreement or this
Mortgage, at least 10 days before the date of any of the foregoing
acts described in this Section 4.04, shall be deemed to be
reasonable notice of such act and, specifically, reasonable
notification of the time and place of any public sale hereunder and
reasonable notification of the time after which any private sale or
other intended disposition to be made hereunder is to be
made.
Borrower shall pay
to Mortgagee on demand any and all reasonable expenses (including
reasonable attorneys' fees and legal expenses) which may have been
incurred by Mortgagee, with interest: (a) in the prosecution or
defense of any action growing out of or connected with the subject
matter of this Mortgage, the Secured Obligations, the Collateral or
any of Mortgagee's rights therein or thereto; or (b) in connection
with the custody, preservation, use, operation, preparation for
sale or sale of any of the Collateral or in connection with
obtaining possession of any of the Collateral, the incurring of all
of which are hereby authorized to the extent Mortgagee deems the
same advisable. Borrower's liability to Mortgagee for any such
payment with interest shall be included in the Secured Obligations.
The Proceeds of any Collateral received by Mortgagee at any time
before or after default, whether from a sale or other disposition
of the Collateral or otherwise, or the Collateral itself, may be
applied to the payment in full or in part of such of the Secured
Obligations and in such order and manner as Mortgagee may elect.
Borrower, to the extent of its rights in the Collateral, waives and
releases any right to require Mortgagee to collect any of the
Secured Obligations from any other of the Collateral or any other
collateral then held by Mortgagee under any theory of marshaling of
assets or otherwise.
Borrower agrees, to
the fullest extent that it lawfully may, that Borrower will not
(and hereby irrevocably waives its right to) at any time plead, or
claim the benefit or advantage of, any appraisement, valuation,
stay, extension, moratorium or redemption law now or hereafter in
force, in order to prevent or hinder the enforcement of this
Mortgage or the absolute sale of the Collateral.
No
remedy herein conferred upon Mortgagee is intended to be exclusive
of any other remedy, but every such remedy shall be cumulative and
shall be in addition to every other remedy herein conferred or now
or hereafter existing in law. In addition, to the remedies provided
in this Mortgage, the Mortgagee shall have and enjoy all of the
remedies provided to it in the Convention.
Proceeds of any
sale, lease or other disposition or other realization upon any
Collateral pursuant to this Mortgage and all other sums realized or
held by the Mortgagee under this Mortgage or any proceedings
hereunder (including any proceeds of insurance) shall be applied by
Mortgagee and any Lender upon receipt as set forth in the Loan
Agreement.
(a) No delay or
omission of Mortgagee to exercise any right or remedy arising upon
the happening of any Default or Event of Default shall impair any
right or remedy or shall be construed to be a waiver of any such
Default or Event of Default or an acquiescence therein and every
right and remedy given to Mortgagee by this Article 4 or by
Applicable Law may be exercised from time to time and as often as
may be deemed expedient by Mortgagee.
(b) All rights of
action under this Mortgage may be enforced by Mortgagee without the
possession of the Note or any other instrument or document
evidencing any obligation or the production thereof in any
proceeding.
Borrower hereby
irrevocably appoints Mortgagee the true and lawful attorney of
Borrower for the duration of this Mortgage (with full power of
substitution) in the name, place and stead of, and at the expense
of, Borrower in connection with the enforcement of the rights and
remedies provided for in this Article 4: (a) to give any necessary
receipts or acquittances for amounts collected or received
hereunder; (b) to make all necessary transfers of the Airframe,
Engine, APU, Parts or Spare Parts in connection with any sale,
lease or other disposition made pursuant hereto; (c) to execute and
deliver for value all necessary or appropriate bills of sale,
assignments and other instruments in connection with any such sale,
lease or other disposition, Borrower hereby ratifying and
confirming all that such attorney (or any substitute) shall
lawfully do hereunder and pursuant hereto; (d) to execute in
Borrower's name and file one or more financing, amendment and
continuation statements covering the Collateral in order to perfect
or continue a perfected Mortgagee's Lien upon the Collateral if
Borrower fails to do so promptly after request therefore by
Mortgagee, including filing any financing or continuation statement
without the signature of Borrower to the extent permitted by
Applicable Law; (e) to register, amend, assign, subordinate,
consent to or discharge any registrations on the International
Registry; (f) to sign any agreements, orders or other documents in
connection with or pursuant to a given Lease; (g) to receive, open,
and retain all mail addressed to Borrower relating to the
Collateral, (h) to make, settle, and adjust all claims under
Borrower's or any Lessee’s policies of insurance and make all
determinations and decisions with respect to such policies of
insurance relating to the Collateral; and (i) to settle and adjust
disputes and claims respecting the Accounts directly with Account
Debtors, for amounts and upon terms which Mortgagee determines to
be reasonable, and Mortgagee may cause to be executed and delivered
any documents and releases which Mortgagee determines to be
necessary. Except for item (d) above, the power of attorney granted
hereby may not be exercised unless an Event of Default has occurred
and is continuing and Mortgagee has notified Borrower that it will
enforce its security interest in the Collateral if such notice is
specifically required under the applicable Loan Documents
(including pursuant to any notice and cure rights). The appointment
of Mortgagee as Borrower's attorney-in-fact, and each and every one
of Mortgagee's rights and powers, being coupled with an interest,
is irrevocable until all of the Secured Obligations have been fully
repaid and performed. MORTGAGEE AND ANY OF ITS OFFICERS, DIRECTORS,
EMPLOYEES, LENDERS OR REPRESENTATIVES SHALL NOT BE RESPONSIBLE TO
BORROWER OR ANY OTHER PERSON FOR ANY ACT OR FAILURE TO ACT PURSUANT
TO THE POWERS GRANTED UNDER THE POWER OF ATTORNEY HEREIN OR
OTHERWISE, EXCEPT FOR ITS OR THEIR OWN GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR
CONSEQUENTIAL DAMAGES. Nevertheless, if so requested by Mortgagee
or a purchaser, lessor or lessee, Borrower shall ratify and confirm
any such sale, lease or other disposition by executing and
delivering to Mortgagee or such purchaser, lessor or lessee all
proper bills of sale, assignments, releases, leases and other
instruments as may be designated in any such request. Any such
attorney of Borrower shall have full power to do any and all things
necessary to be done with respect to the above transactions as
fully and effectually as Borrower might do, and Borrower hereby
ratifies all that said attorney shall lawfully do or cause to be
done by virtue hereof. The rights of the Mortgagee under this
section shall be in addition to the rights of the Mortgagee under
the IDERA, as set forth in section 3.02 above.
To the
maximum extent permitted by Applicable Law, Borrower waives all
claims, damages, and demands against Mortgagee, its Affiliates,
agents, and the officers and employees of any of them arising out
of the repossession, retention or sale of any Collateral and any
other acts or failure to act in connection with Mortgagee's rights
and remedies hereunder, except such as are determined in a final
judgment by a court of competent jurisdiction to have arisen out of
the gross negligence or willful misconduct of such
Person.
Borrower waives:
(a) all right to require Mortgagee to proceed against any other
person including any other borrower hereunder or under the Loan
Agreement or to apply any Collateral Mortgagee may hold at any time
or to pursue any other remedy, Collateral, endorsers or guarantors
may be released, substituted or added without affecting the
liability of Borrower hereunder; (b) the defense of the statute of
limitations in any action upon any obligations of Borrower secured
hereby; (c) any right of subrogation and any right to participate
in Collateral until all obligations secured hereby have been paid
in full; and (d) to the fullest extent permitted by law, any right
to oppose the appointment of a receiver or similar official to
operate Borrower's business after the occurrence and during the
continuance of an Event of Default.
ARTICLE 5.
Borrower and
Mortgagee acknowledge and agree for the benefit of each Permitted
Lessee that notwithstanding any other provisions hereof to the
contrary, including but not limited to Mortgagee’s remedies
under Sections 4.02 and 4.04, the Lien of this Mortgage shall be
expressly subject to all of the rights of such Permitted Lessee
under the applicable Lease so long as no Event of Default under a
given Lease has occurred and so long as the Lessee performs its
obligations under the Acknowledgement.
Borrower and
Mortgagee acknowledge and agree for the benefit of each Permitted
Lessee that notwithstanding any other provision hereof to the
contrary:
(a) so long as no Event
of Default under the Lease shall have occurred and the Lessee
performs its obligations under the Acknowledgement, Mortgagee shall
not interfere or permit any Person acting by, through or under
Mortgagee to interfere with any right of such Permitted Lessee
peaceably and quietly without hindrance or molestation to hold,
possess and use, during the term of the applicable Lease and in
accordance with the terms thereof, the Airframe, Engine, APU, Part
or Spare Part;
(b) subject to the
provisions of this Mortgage and the Acknowledgement, and until the
occurrence of an Event of Default and upon demand by Mortgagee,
Borrower may exercise all the rights and enjoy all the benefits of
the lessor under the applicable Lease; and
(c) any amounts held by
Mortgagee or any agent or trustee acting on behalf of Mortgagee for
which application is provided in a given Lease or applicable
replacement Lease shall be applied solely as provided in such
Lease.
One
originally executed counterpart of each Lease included in the
Collateral shall be marked "original" and legended in form
satisfactory to Mortgagee to indicate that such Lease is the
original of a given Lease with all other copies marked "copy." The
original Lease shall be delivered by Borrower to Mortgagee or its
designee together with the original ▇▇▇▇ of sale for the equipment
being leased, prior to said Lease being included in the Borrowing
Base (subject to the terms and conditions in the Loan
Agreement).
(a) Borrower shall
remain liable as lessor under the applicable Lease to perform all
the obligations assumed by Borrower thereunder. The obligations of
Borrower under the applicable Lease may be performed by Mortgagee
or any subsequent assignee of Mortgagee ("Subsequent Mortgagee") without
releasing Borrower therefrom. Mortgagee or any Subsequent Mortgagee
shall have no liability or obligation under any Lease by reason of
this Mortgage and shall not, by reason of this Mortgage, be
obligated to perform any of the obligations of Borrower under the
Leases or to file any claim or take any other action to collect or
enforce any payment assigned hereunder.
(b) Borrower hereby
agrees (i) to perform duly and punctually each of the terms,
conditions and covenants contained in a given Lease, and (ii)
subject to Borrower's business judgment and reasonable commercial
practice, to exercise promptly and diligently each and every right
Borrower may have under a given Lease.
(c) Borrower does
hereby warrant and represent that all Leases are in full force and
effect and that Borrower has not assigned or pledged, and hereby
covenants that Borrower will not assign or pledge, so long as this
Mortgage shall remain in effect, the whole or any part of the
rights hereby assigned, to anyone other than
Mortgagee.
ARTICLE 6.
No
amendment or waiver of any provision of this Mortgage, or consent
to any departure by Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by
Mortgagee, and registered with the International Registry if
required by Mortgagee, and any such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which given.
All
notices, requests and demands to or upon the respective parties
hereto to be effective, shall be in writing and shall be personally
delivered or sent by facsimile (with subsequent written
confirmation) or by registered or certified first class mail,
postage prepaid, return receipt requested, or by nationally
recognized overnight (or next business day) courier service and,
unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, on the day that
such facsimile is transmitted, or, if by first class mail, five (5)
days following the date on which such writing is deposited with the
postal service, or the day after the date when deposited with a
nationally recognized overnight (or next business day) courier
service, addressed as follows, or to such other address as either
party hereto may hereafter specify in writing to the other
party:
|
Borrower:
|
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
Mortgagee:
|
MUFG
Union Bank, N.A.
Special
Assets Division
Attn:
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ 10020Email: ▇▇▇▇@▇▇.▇▇▇▇.▇▇
and
to:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
Four
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (415) 434-XXXX
Email:
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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(a) This Mortgage shall
create a continuing lien and security interest in the Collateral
and shall (i) remain in full force and effect until payment and
performance in full of all the Secured Obligations, (ii) be binding
upon Borrower, its successors and assigns, and (iii) inure,
together with the rights and remedies of Mortgagee hereunder, to
the benefit of Mortgagee, and its respective successors,
transferees and assigns.
(b) Mortgagee shall
at all times be the same Person that is “Agent” under
the Loan Agreement. Written notice of resignation by Agent
pursuant to the Loan Agreement shall also constitute notice of
resignation as Mortgagee under this Mortgage. Removal of
Agent pursuant to any provision of the Loan Agreement shall also
constitute removal as Mortgagee under this Mortgage.
Appointment of a successor Agent pursuant to the Loan
Agreement shall also constitute appointment of a successor
Mortgagee under this Mortgage. Upon the acceptance of
any appointment as Agent by a successor Agent under the Loan
Agreement, that successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of
the retiring or removed Mortgagee as the Mortgagee under
this Mortgage, and the retiring or removed Mortgagee shall
promptly (i) assign and transfer to such successor
Mortgagee all of its right, title and interest in and to this
Mortgage and the Collateral, and (ii) execute and deliver to such
successor Mortgagee such assignments and amendments and take such
other actions, as may be necessary or appropriate in connection
with the assignment to such successor Mortgagee of the liens and
security interests created hereunder, whereupon such retiring or
removed Mortgagee shall be discharged from its duties and
obligations under this Mortgage. After any retiring or
removed Mortgagee’s resignation or removal hereunder as
Mortgagee, the provisions of this Mortgage and the Loan Documents
shall inure to its benefit as to any actions taken or omitted to be
taken by it under this Mortgage while it was
Mortgagee hereunder.
(a) EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS
ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE,
WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF
LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW), AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
BORROWER HEREBY
CONSENTS AND AGREES, PURSUANT TO SECTION 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW, THAT THE STATE OR FEDERAL COURTS LOCATED
IN THE STATE OF NEW YORK AND SITTING IN THE COUNTY OF NEW YORK, NEW
YORK, RESPECTIVELY, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE PARTIES
HERETO PERTAINING TO THIS MORTGAGE OR TO ANY MATTER ARISING OUT OF
OR RELATED TO THIS MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS;
PROVIDED, THAT EACH OF THE BORROWER AND MORTGAGEE ACKNOWLEDGE THAT
ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF NEW YORK, NEW YORK; AND FURTHER PROVIDED, THAT
NOTHING IN THIS MORTGAGE SHALL BE DEEMED OR OPERATE TO PRECLUDE
MORTGAGEE OR ANY CREDIT FACILITY LENDER FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE
OBLIGATIONS DUE UNDER THE CREDIT FACILITY, TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR SUCH OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF MORTGAGEE OR
SUCH CREDIT FACILITY LENDER. BORROWER EXPRESSLY SUBMITS AND
CONSENTS TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND BORROWER HEREBY WAIVES ANY OBJECTION WHICH IT
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE
OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH
LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT
AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE
TO BORROWER AS SET FORTH IN SECTION 6.02 HEREIN AND THAT SERVICE SO
MADE SHALL BE DEEMED COMPLETED UPON SUCH PARTY'S ACTUAL RECEIPT
THEREOF.
(b) To the extent
permitted by law, service of process in any action against Borrower
or Mortgagee may be made by registered or certified mail, return
receipt requested, to its address indicated herein.
(c) Borrower agrees
that any final judgment rendered against it in any action or
proceeding shall be conclusive as to the subject of such final
judgment and may be enforced in other jurisdictions in any manner
provided by law.
The
invalidity of any one or more of the provisions of this Mortgage
shall not affect the remaining provisions of this Mortgage. If any
one or more of the provisions of this Mortgage should be held by
any court of law to be invalid, or should operate to render this
Mortgage invalid or to impair the lien and security interest of
this Mortgage on all or the major portion of the property intended
to be mortgaged hereunder, this Mortgage shall be construed as if
such provisions had not been contained therein. In the event of a
dispute between any of the parties hereto over the meaning of this
Mortgage, all parties shall be deemed to have been the drafter
hereof, and any Applicable Law that states that contracts are
construed against the drafter shall not apply.
This
Mortgage (including all exhibits hereto) and the documents executed
pursuant hereto constitute the entire agreement of the parties with
respect to the subject matter hereof and there are no other prior
or contemporaneous written or oral understandings with regard to
the subject matter hereof.
This
Mortgage may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same
instrument.
In the
event of a conflict between the terms of this Mortgage and the
terms of the Loan Agreement, the terms of the Loan Agreement shall
control.
The
Section titles and Table of Contents contained in this Mortgage and
any other Loan Document are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto.
Time is
of the essence for performance of any obligations under this
Mortgage.
(a) Termination; Full Release. This
Mortgage shall create a continuing lien and security interest in
the Collateral and shall remain in full force and effect until the
earlier to occur of the following: (i) payment in full of the
Secured Obligations (other than contingent obligations which by
their nature cannot be satisfied by payment at such time)
and either (x)
expiration of the term of the Loan Agreement or (y) termination of
the obligation of any Lender to make any advances to Borrower
pursuant to the Loan Agreement or any other Loan Documents;
or (ii) release by
the Mortgagee of the Lien created hereunder in accordance with the
terms and conditions of this Mortgage, the Loan Agreement and the
other Loan Documents, this Mortgage, at which time all of the
powers, rights and interests granted hereunder and created hereby
shall forthwith terminate, and the Mortgagee shall, at the cost and
expense of Borrower, execute and deliver all such documents and
instruments reasonably necessary to accomplish the same, within a
reasonable period of time.
(b) Partial Release.
Notwithstanding paragraph (a), subject to the terms of the Loan
Agreement, Borrower shall be entitled to have any item of
Collateral released from this Mortgage, which partial releases
shall be in form reasonably satisfactory to Mortgagee, for sale or
other disposal of Collateral in accordance with the Loan Agreement.
If any item of Collateral released pursuant to the foregoing is
then the subject of a Lease from Borrower and if the Lessee has
deposited with Borrower any Security Deposit or related cash,
letter of credit, or guaranty, a maintenance reserve or other cash
deposit that does not constitute payment of rental under the
relevant Lease, then at the time of release of the relevant
Collateral the Mortgagee shall also release the related cash
deposit and letter of credit. Notwithstanding the foregoing,
Borrower shall not be entitled to a release of any item of
Collateral unless, at the time of such release: (i) Borrower
complies with all requirements set forth in the Loan Agreement
regarding the sale, disposal or other transfer of such Collateral
and in any other Loan Document; (ii) there is not then existing an
Default or Event of Default; and (iii) no Default or Event of
Default would exist immediately following the release.
Section
6.12 Amendment and Restatement. This
Mortgage is a complete amendment and restatement of the Security
Agreement, and the Liens contained in the Security Agreement are
carried forward, renewed and extended to secure the obligations and
indebtedness secured by the Security Agreement. This Mortgage and
the security interest herein granted are in addition to, and not in
substitution, novation or discharge of, any and all prior or
contemporaneous security agreements and security interests in favor
of Mortgage or assigned to Mortgagee by others. All rights, powers
and remedies of Mortgagee in all such security agreements are
cumulative, but in the event of actual conflict in terms and
conditions, the terms and conditions of the latest security
agreement shall govern and control.
[Remainder of Page Intentionally Left Blank]
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Fourth
Amended and Restated
Mortgage
& Security Agreement
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0A22-152811
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IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Amended
and Restated Mortgage and Security Agreement to be duly executed
and delivered as of the day and year first above
written.
as
Borrower
By
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Senior Vice President - Operations
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Mortgage
& Security Agreement
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0A22-152811
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MUFG UNION BANK, N.A., as
Agent,
as
Mortgagee
By:
/s/ ▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇
Title: Director
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-[Insert
Page Number]-
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Mortgage
& Security Agreement
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EXHIBIT A
The Security Agreement
EXHIBIT B
US REGISTERED AIRFRAMES AND ENGINES
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Fourth
Amended and Restated
Mortgage
and Security Agreement
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0A22-152811
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THE ENGINES
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Fourth
Amended and Restated
Mortgage
and Security Agreement
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0A22-152811
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NON-US REGISTERED AIRFRAMES
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Fourth
Amended and Restated
Mortgage
and Security Agreement
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0A22-152811
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EXHIBIT
C
LEASES
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Fourth
Amended and Restated
Mortgage
and Security Agreement
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0A22-152811
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EXHIBIT D
Form of
Mortgage Supplement
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Fourth
Amended and Restated
Mortgage
and Security Agreement
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EXHIBIT E
IRREVOCABLE DE-REGISTRATION
AND EXPORT REQUEST AUTHORIZATION
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