No. BK-S-00-19258 (LBR)United States Bankruptcy Court, D. Nevada
January 12, 2001
Attorneys for Creditor BFGoodrich Aerospace MRO Group, Inc., Daniel T. Foley, Esq., FOLEY FOLEY, Las Vegas, Nevada
Dennis M. O’Dea, Esq., WOLF, BLOCK, SCHORR AND SOLIS-COHEN LLP, New York, New York
Attorneys for National Airlines, Laurence M. Frazen, Esq. BRYAN CAVE, LLP., Kansas City, MO
STIPULATED ORDER PENDING RULING ON MOTION TO COMPEL ASSUMPTION OR REJECTION OF SERVICES ORDERING AGREEMENT
LINDA B. RIEGLE, United States District Judge
BFGoodrich Aerospace MRO Group, Inc. (“BFG”) and National Airlines, Inc. (“National”) agree to the following Stipulated Order to be entered in this case:
A. Recitals:
Pending Resolution of the Motion of BFGoodrich Aerospace Group, Inc. to Require the Debtor to Assume or Reject Executory Contract and Provide Adequate Protection, which motion National has opposed, National and BFG have entered into this Stipulated Order regarding the Airframe Services Orders for Aircraft N547NA and N50SNA submitted by National to BEG subsequent to the commencement of this case for Airframe Services under the terms of the Services Ordering Agreement dated June 21, 2000 (the “Agreement”).
National and BEG continue to dispute whether National should assume or reject the Agreement prior to seeking further performance by BFG and whether National must provide adequate protection and assurance that it will fulfill its payment obligations under the Agreement. National maintains that it is entitled to seek performance of the Agreement by BFG without assuming the agreement.
On January 10, 2001, National delivered Aircraft N547NA (Aircraft N547NA) to the BFG Airframe Services facility in Everett, Washington for Airframe Services. BFG has commenced providing Airframe Services in connection with that aircraft
B. BEG and National Stipulate to the following Order:
1. National admits and acknowledges the existence, validity, and enforceability of the possessory lien of BFG in Aircraft N547NA under the provisions of the common law and statutory law of the State of Washington to secure payment for the Airframe Services and related materials provided and to be provided by BEG. (“the N547NA Repair Costs”).
2. National agrees to pay any amount due under the Initial Invoice submitted in connection with the N547NA Repair Costs (subject to National’s right to dispute any specific amount due under Section 4.2.3 of the Agreement) no later than the Time of Payment as set forth in the Agreement; Provided, however, that National will pay the N54INA Repair Costs on the later date of either of the following events should they occur prior to the Time of Payment as set forth in the Agreement:
(a) The date of the Receipt by National of the Initial Invoice for the amounts set forth in that invoice; or
(b) The date when National is authorized and permitted to make its first draw for any purpose under any Debtor In Possession Financing Order entered in this case pursuant to 11 U.S.C. § 364.
3. National agrees to pay any amount due under the Final Invoice submitted in connection with the N547NA Repair Costs (subject to National’s right to dispute any specific amount due under Section 4.2.3 of the Agreement) no later than the Time of Payment as set forth in the Agreement Provided, however, that National will pay the NS47NA Repair Costs on the later date of either of the following events should they occur prior to the Time of Payment as set forth in the Agreement:
(a) The date of the Receipt by National of the Final Invoice for the amounts set forth in that invoice; or
(b) The date when National is authorized and permitted to make its first draw for any purpose under any Debtor In Possession Financing Order entered in this case pursuant to 11 U.S.C. § 364.
4. BFG anticipates delivery of Aircraft N50SNA on or after January 19, 2001 for Airframe Services. BFG agrees to provide Airframe Services and National agrees to pay any amount due under the Initial Invoice submitted in connection with the N508NA Repair Costs (subject to National’s right to dispute any specific amount due under Section 4.2.3 of the Agreement) no later than the Time of Payment as set forth in the Agreement; Provided, however, that National will pay the N508NA Repair Costs on the later date of either of the following events should they occur prior to the Time of Payment as set forth in the Agreement:
(a) The date of the Receipt by National of the Initial Invoice for the amounts set forth in that invoice; or
(b) The date when National is authorized and permitted to make its first draw for any purpose under any Debtor In Possession Financing Order entered in this case pursuant to 11 U.S.C. § 364.
5. National agrees to pay any amount due under the Final Invoice submitted in connection with the N508NA Repair Costs (subject to National’s right to dispute any specific amount due under Section 4.2.3 of the Agreement) no later than the Time of Payment as set forth in the Agreement; Provided, however, that National will pay the N508NA Repair Costs on the later date of either of the following events should they occur prior to the Time of Payment as set forth in the Agreement:
(a) The date of the Receipt by National of the Final Invoice for the amounts set forth in that invoice; or
(b) The date when National is authorized and permitted to make its first draw for any purpose under any Debtor In Possession Financing Order entered in this case pursuant to 11 U.S.C. § 364.
6. National admits and acknowledges the existence, validity, and enforceability of a possessory lien of BFG in the Aircraft N508NA under the provisions of the common law and statutory law of the State of Washington to secure payment for the Airframe Services and related materials to be provided by BFG (the “N508NA Repair Costs”).
7. Upon completion of Airframe Services and redelivery of each aircraft, BFG shall continue to hold a valid, perfected, and enforceable lien in the aircraft to secure payment which lien shall have the same force and effect and priority of the possessory lien arising under the law of the State of Washington when Airframe Services and related materials are provided by BFG during the period it has possession of the aircraft.
8. This court shall retain jurisdiction over Aircraft N547NA and N508NA to enforce the lien rights of BFG, hear any disputes between National, BFG and any other person regarding enforcement of such liens and the payment of the amount, if any, due to BFG for Airframe Services to Aircraft N547NA and N508NA as provided in Section 4.2.3 of the Agreement
ORDER
The Court having considered the foregoing Stipulation and good cause appearing:
IT IS HEREBY ORDERED that the Stipulation is approved and so ordered in its entirety.