AIRCRAFT SALE AND PURCHASE AGREEMENT (238)
THIS AIRCRAFT SALE AND PURCHASE AGREEMENT (238) (this "Purchase
Agreement"), dated as of April _______, 2005, is by and among AeroCentury
Corp., a United States, State of Delaware corporation ("Purchaser") and
Wideroe's Flyveselskap ASA, a Norwegian corporation ("Seller").
W I T N E S S E T H:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, th
Aircraft (as defined below);
WHEREAS, contemporaneously with the purchase and sale of the Aircraft,
Purchaser and Seller will enter into a lease agreement whereunder Seller shall
lease the Aircraft from Purchaser;
WHEREAS, further contemporaneously with purchase, sale and lease of the
Aircraft, Purchaser shall purchase from, and lease back, to Seller the Other
Aircraft;
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
Section 1. Definitions. The following terms, when capitalized, shall
have the following meanings for all purposes of this Purchase Agreement, except
where the context otherwise requires and all other capitalized terms used
herein, but not otherwise defined herein, shall be as defined in the Lease, as
defined below:
"Aircraft" shall mean the Airframe, together with Engines,
Propellers, and Landing Gear each, as equipped with all Parts, equipment,
components and accessories installed therein or thereon, in each case, as more
fully described and defined in the Lease and all specifications and
descriptions of "Aircraft" "Airframe", "Engines", "Propellers", "Landing Gear",
and "Parts" leased thereunder and including all Aircraft Documents as also
defined in the Lease and notwithstanding any, more limited description of the
"Aircraft" under the Bills of Sale, the description of the "Aircraft" under the
Lease shall, without further notation in the Bills of Sale, be the "Aircraft"
conveyed under the Bills of Sale.
"Bills of Sale" shall mean together, the Long Form Xxxx of Sale and
Short Form Xxxx of Sale.
"CAA" shall mean the Norwegian Civil Aviation Authority and Norwegian
Civil Aircraft Registry and any and all other governmental unit, agency, office
or department with authority over the registration, operation, use, and
airworthiness of civil aircraft registered and operated in commercial passenger
service in Norway. Under the Lease, the CAA is referred to as the "Aviation
Authority".
"Closing" shall mean the closing of the Aircraft purchase and sale and
simultaneous leasing transaction contemplated by this Purchase Agreement.
"Closing Date" shall mean the date of Closing as such term is defined
in Section 2(c) of this Purchase Agreement.
"Cross Receipt and Acceptance Certificate" shall mean the Cross Receipt
and Acceptance Certificate to be executed and delivered by Seller and Purchaser
on the Closing Date, in the form of Exhibit B attached hereto.
"Lease" means the Lease Agreement, dated of even date herewith,
between the Seller and the Purchaser relating to the Aircraft, as supplemented
and amended.
"Long Form Xxxx of Sale" the long form xxxx of sale pertaining to the
Aircraft in the form of Exhibit A hereto.
"Other Aircraft" means the de Havilland model DHC-8-311 aircraft
bearing manufacturer's serial number 236 and Norwegian registration number
LN-WFC to be purchased by Purchaser from, and leased back to, Seller on the same
terms and conditions as the Aircraft.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or agency or political subdivision thereof.
"Short Form Xxxx of Sale" means the short form xxxx of sale prescribed
by the CAA for filing in Norway with the appropriate CAA office to properly
effect and document change of ownership of the Aircraft under Norwegian law
from Seller to Purchaser as contemplated hereby.
2. CLOSING OF PURCHASE AND SALE.
(a) Sale and Purchase. Subject to the terms and conditions set forth in
this Purchase Agreement, Seller agrees to sell and Purchaser agrees to purchase
the Aircraft on the Closing Date (as set forth in Section 2(c)).
(b) Purchase Price. The purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Aircraft shall be US$3,815,000, free and
clear of all taxes for which Seller is responsible under this Purchase
Agreement. Purchaser shall retain US$57,000 for application to the first
month's Rent to be paid by Lessee under the Lease, and at Closing, Purchaser
shall, by wire transfer of readily available funds for value on the date due,
wire (or release to Seller out of the escrow account established with the
escrow agent as provided in Section 2(c) below) the amount of US$3,758,000, to
such Seller bank account having such wire transfer instructions as Seller shall
inform Purchaser, in writing, prior to Closing.
As of the date hereof, Purchaser, as "Lessee" under the Lease, has elected to
deliver to the Seller, as "Lessor" under the Lease, an irrevocable letter of
credit in lieu of a cash Security Deposit required by the Lease. If, on the
Closing Date, Lessee does not deliver the letter of credit contemplated by the
Lease, Seller shall retain, out of the Purchase Price, an additional amount
equal to the Security Deposit under the Lease.
(c) Closing Date and Place, Escrow of Funds. The closing of this
purchase and sale shall occur on or before, and no later than the close of
business in Norway on, April 25, 2005 or such other date as mutually agreed by
Purchaser and Seller (the "Closing Date"). The Closing shall take place in the
offices of Xxxxxxx xx Xxxxxx, Oslo, Norway ("Norwegian Counsel"), or such other
location as is mutually agreeable to the parties. Seller and Purchaser agree to
cooperate in the deposit, prior to Closing, into escrow with a mutually
acceptable escrow agent whose fees, costs and expenses shall be borne by
Seller, the funds payable under this Agreement in order to facilitate a
simultaneous release of funds and documentation to effect the sale and lease
contemplated by this Agreement and the Lease. Any such deposit of funds into
escrow shall be subject to the approval of Purchaser's lender.
3. CLOSING CONDITIONS AND PROCEDURES
(a) Conditions Precedent to Purchaser's Obligations. It shall be a
condition precedent to Purchaser's obligations to purchase the Aircraft as
contemplated hereunder that:
(i) the items to be delivered by Seller at Closing by Seller
under Section 3(c) shall have been delivered to Purchaser;
(ii) Seller shall have executed and delivered to Purchaser the
Operative Documents to which Seller is a party or which are required to be
delivered by Seller;
(iii) Purchaser shall have received:
(A) a copy of Seller's statutes, articles of
incorporation, association or organization and other constituent documents
certified as of the Closing Date by a duly authorized officer of Seller as being
true, correct and current;
(B) a copy of the resolutions of the Board of
Directors of Seller certified as of the Closing Date by a duly authorized
officer of Seller duly authorizing execution, delivery and performance by of
this Purchase Agreement and all other Operative Documents;
(C) an incumbency or other certificate or document
appropriate under Norwegian law as to the person or persons authorized to
execute and deliver this Purchase Agreement on behalf of Seller and all
documents, including all Operative Documents, described herein required to be
executed and delivered by Seller hereunder, or other equivalent document
sufficient under Norwegian law; and
(D) a certificate of a duly authorized officer of
Lessee certifying that the Aircraft has not been subject to total loss or any
damage the repair of which would exceed the Damage Notification Threshhold
(as defined under the Lease) since Lessor's inspection thereof on April 7, 2005;
(iv) Purchaser and the Financing Party shall have received an
opinion of Xxxxxxx xx Xxxxxx covering such matters as Purchaser shall reasonably
request, including, without limitation, absence of liens, claims, charges or
encumbrances affecting the Aircraft at the time of Closing, the conveyance by
Seller to Purchaser of full, valid, good and marketable title to the Aircraft,
free and clear of all liens, claims, charges and encumbrances, the due
authorization and enforceability of the Operative Documents, the filing for
registration and recording of all pertinent Operative Documents and agreements
under Norwegian law (including with the CAA) as are contemplated by the
Operative Documents and covering such other matters as Purchaser and the
Financing Party deem relevant to the closing of the sale, purchase, lease and
finance of the Aircraft hereunder;
(v) Purchaser shall have received all other documentation
(including Seller's delivery of the CAA approval to the sale and lease
transaction contemplated hereby and any other third party consents) reasonably
necessary to consummate the transactions contemplated hereby and reasonably
required to evidence consummation of the transactions contemplated by the
Operative Documents, including without, limitation, the sale and lease back of
the Other Aircraft contemporaneously with the sale hereunder and upon the same
terms and conditions as the Aircraft;
(vi) All conditions precedent to the obligations of Purchaser
(as "Lessor") under, and as set forth in the Lease shall have been met to the
reasonable satisfaction of Purchaser, including, without limitation, that all
filings with respect to Purchaser's ownership, the Lease and the security
interest of the Financing Party have been made or shall be made
contemporaneously with Closing, that the CAA has approved Purchaser as "Lessor"
and registered owner under Norwegian law, that the CAA has approved the Lease
for registration, and that the insurance coverages required by the Lease shall
be in full force and effect upon Closing;
(vii) Purchaser shall have received reasonably satisfactory
evidence of the absence of any liens or encumbrances (recorded or otherwise)
affecting or pertaining to the Aircraft, Seller's title, and/or Seller's ability
to transfer good and marketable title to the Aircraft at Closing, free and clear
of any lien, claim or encumbrance whatsoever, or, if the claim of any lender or
secured party to Seller shall have or claim any such interest, and Purchaser and
the Financing Party shall have received reasonably satisfactory evidence of the
due and prompt release of any lien, claim or encumbrance of any lender or
secured party to the Seller upon payment of the Purchase Price under this
Purchase Agreement to such lender or secured party;
(viii) Without limiting the obligation of Seller to pay and
indemnify the Purchaser for such taxes pursuant to this Purchase Agreement and
the Lease, the Purchaser shall be satisfied that, at the time of the sale to
Purchaser under this Purchase Agreement, the Aircraft is located in a
jurisdiction that will not cause any sale, use, excise, transfer, gross
receipts, value added or similar taxes, fees or charges to be levied against the
Purchaser under any applicable law;
(ix) Purchaser shall have received such other corporate
certificates, instruments, agreements, documents and evidence as the Purchaser
or its counsel may reasonably request in order to establish the consummation of
the transactions contemplated by the Operative Documents, the taking of all
necessary corporate action in connection therewith and compliance with the
conditions set forth in this Purchase Agreement and the Lease; and
(x) Purchaser, escrow agent and Purchaser's lender shall have
entered into an agreement for the deposit with the escrow agent of the Purchase
Price (less applicable amounts under Section 2(b) above) prior to Closing
including the conditions for release of such amounts to the Seller at Closing.
(b) Conditions Precedent to Seller's Obligations. It shall be a
condition precedent to Seller's obligations to consummate the transactions
contemplated hereunder that:
(i) the items to be delivered by Purchaser at Closing set
forth in Section 3(d) shall be delivered to Seller;
(ii) the Purchaser shall have executed and delivered the
Operative Documents to which Purchaser is a party or which are required
to be delivered by Purchaser;
(iii) Seller shall have received:
(A) a copy of the Purchaser's statutes, articles of
incorporation or association and other constituent documents
certified as of the Closing Date by a duly authorized officer of
Purchaser as being true, correct and current;
(B) a copy of the resolutions of the Board of
Directors of Purchaser certified as of the Closing Date by a duly
authorized officer of Purchaser duly authorizing execution, delivery and
performance by of this Purchase Agreement and all other Operative
Documents;
(C) an incumbency certificate as to the person or
persons authorized to execute and deliver this Purchase Agreement on
behalf of Purchaser and all documents, including all Operative
Documents, described herein required to be executed and delivered by
Purchaser hereunder;
(iv) Seller shall have received all other documentation
(including CAA approval of the sale and lease transaction contemplated
hereby and any other third party consents) reasonably necessary to
consummate the transactions contemplated by the Operative Documents;
including, without limitation, that the CAA has approved Purchaser as
"Lessor" and registered owner under Norwegian law, that the CAA has
approved the Lease for registration.
(c) Seller's Deliveries at Closing. Subject to the terms and conditions
hereof, at the time of Closing, the Seller shall deliver the following
documents to Purchaser:
(i) the Bills of Sale for the Aircraft, duly executed by
Seller;
(ii) the Cross Receipt and Acceptance Certificate with respect
to the Aircraft in the form of Exhibit B, duly executed by Seller;
(iii) the Lease, together with all documents required to be
executed and delivered to Purchaser thereunder and hereunder, all, as
applicable, duly executed by Seller;
(iv) such other instruments, certificates, opinions and
documents which, in the reasonable opinion of Purchaser, the Financing
Party and their respective counsel, need to be executed and delivered
by Seller on or before the Closing Date in order to consummate the
transactions contemplated hereby and meet the conditions set forth in
Section 3 (a) and (b), as applicable.
(d) Purchaser's Deliveries at Closing. Subject to the terms and
conditions hereof, at the time of Closing, Purchaser shall deliver the
following to Seller:
(i) The Purchase Price for the Aircraft in the amount
specified in Section 2(b) hereof in the manner specified thereby;
(ii) Cross Receipt and Acceptance Certificate in respect to
the Aircraft in the form of Exhibit B, duly executed by Purchaser;
(iii) the Lease, together with all documents required to be
executed and delivered to Seller thereunder and hereunder, all duly
executed by Purchaser;
(iv) such other instruments, certificates and documents as
needed, in the reasonable opinion of Seller, to be executed and
delivered in order to consummate the transactions contemplated hereby
and meet the conditions set forth in Sections 3 (a) and (b) above.
(e) Delivery and Acceptance; Risk of Loss.
(i) Seller, as "Lessee", and Purchaser as "Lessor", shall,
contemporaneously with the Closing, enter into the Lease with each other. Upon
the Closing of the purchase and sale, Seller shall (i) cause all the conditions
specified in the Lease to be fully satisfied; and (ii) accept delivery of the
Aircraft under the Lease in accordance with the terms of the Lease. Such a
delivery to Seller shall be deemed to be delivery of the Aircraft to Purchaser
hereunder.
(ii) Title and risk of loss to the Aircraft shall pass from
Seller to Purchaser under this Purchase Agreement upon payment of the Purchase
Price by Purchaser to Seller and the simultaneous delivery by Seller to
Purchaser of the Bills of Sale, each to occur at the time of Closing.
(iii) If, (A) after inspection by Lessor on April 7, 2005 and
before Closing, the Aircraft is destroyed, Seller shall notify Purchaser thereof
and upon receipt of such notice, this Purchase Agreement shall terminate without
further act of either party and thereafter, neither party shall have any further
rights or obligations with respect to, the purchase of the Aircraft or, (B)
after inspection by Lessor on April 7, 2005 and before Closing, the Aircraft has
been damaged where the cost of repair would exceed the Damage Notification
Threshhold (as defined in the Lease), Seller shall notify Purchaser thereof and
after receipt of such notice, Purchaser shall have the option to terminate this
Agreement upon notice to Seller whereupon the issuance of such a notice by
Purchaser, this Agreement shall terminate and thereafter, neither party shall
have any further rights or obligations with respect to the purchase of the
Aircraft.
Section 4. No Express or Implied Warranties
(a) With respect to the Aircraft, Purchaser acknowledges that:
EXCEPT FOR THE WARRANTY OF TITLE TO THE AIRCRAFT AS SET FORTH IN SECTION
5(b)(v) HEREOF AND IN THE BILLS OF SALE AND THE OTHER REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 5(b) HEREOF, SELLER HAS NOT MADE ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
RELATING TO THE AIRCRAFT CONDITION AS CONTEMPLATED BY THIS PURCHASE AGREEMENT.
THE AIRCRAFT IS BEING ACQUIRED BY PURCHASER ON AN "AS IS, WHERE IS AND WITH ALL
FAULTS" BASIS.
Section 5. Representations and Warranties.
(a) Representations and Warranties - Purchaser. Purchaser represents
and warrants to Seller upon execution hereof and at Closing that:
(i) Purchaser is a corporation duly organized and validly
existing under the laws of the State of Delaware, United States of America, and
it has the power and authority to own its assets and carry on its business as
presently carried on;
(ii) the execution, delivery and performance of the Operative
Documents to which it is a party and the consummation of the transactions
contemplated thereby have been (or by Closing will have been) duly authorized
by all necessary action of Purchaser;
(iii) assuming the validity of execution and delivery by any
other parties other than the Purchaser, the Operative Documents when executed
and delivered by Purchaser constitute or will constitute legal, valid and
binding obligations of Purchaser and enforceable in accordance with their
respective terms except to the extent that such enforceability may be limited
by bankruptcy, insolvency or similar laws respecting creditors' rights
generally;
(iv) the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, the Operative
Documents to which Purchaser is a party will in no way exceed the powers
granted to Purchaser, or violate in any respect any provision of, or cause a
breach or default of:
(A) any law or regulation or any order or decree of any
governmental authority, agency or court or generally accepted interpretation
thereof or any judgment, decree or permit to which Purchaser is subject; and
(B) any resolution of the directors or shareholder of
Purchaser; or any mortgage, charge, deed, contract or other undertaking or
instrument of Purchaser;
(v) there are no pending or, to the knowledge of Purchaser,
threatened actions, or proceedings against, as the case may, be, before any
court, arbitrator or administrative agency which, if adversely determined,
would materially adversely affect the ability of Purchaser to perform its
obligations under this Purchase Agreement or any of the other Operative
Documents to which it is a party on the Closing Date.
(b) Representations and Warranties - Seller. Seller represents and
warrants to Purchaser upon the execution hereof and at Closing that:
(i) Seller is a corporation duly organized and validly
existing under the laws of the country of Norway, and it has the power and
authority to own its assets and carry on its business as presently carried on;
(ii) the execution, delivery and performance of the Operative
Documents to which it is a party and the consummation of the transactions
contemplated thereby have been (or by Closing will have been) duly authorized
by all necessary action of Seller;
(iii) assuming the validity of execution and delivery by any
other parties other than the Purchaser, the Operative Documents when executed
and delivered by Seller constitute or will constitute legal, valid and binding
obligations of Seller and enforceable in accordance with their respective terms
except to the extent that such enforceability may be limited by bankruptcy,
insolvency or similar laws respecting creditors' rights generally;
(iv) the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, the Operative
Documents to which Seller is a party will in no way exceed the powers granted
to Seller, or violate in any respect any provision of, or cause a breach or
default of:
(A) any law or regulation or any order or decree of any
governmental authority, agency or court or generally accepted interpretation
thereof or any judgment, decree or permit to which Seller is subject; or
(B) the Articles of Incorporation of Seller or any resolution
of the directors or shareholders of Seller; or any mortgage, charge, deed,
contract or other undertaking or instrument of Seller;
(v) Seller shall be, the time of Closing, the legal and
beneficial owner of the Aircraft, and upon the Closing, Seller shall convey
good and valid title to the Aircraft, free and clear of any claims, liens,
security interests, encumbrances or rights of others of any nature whatsoever
(except for any lien of the Financing Party), and that such warranty includes
the following further representation warranty of Seller that, at Closing,
Seller shall possess and convey to Purchaser under the Bills of Sale all good
and valid title to the Engines, Propellers and Landing Gear identified in the
attachments to Exhibit B hereto, regardless of whether or not such equipment
is installed on the Aircraft upon Closing and if not so installed at Closing,
Seller hereby represents and warrants that such equipment is only temporarily
not installed on the Aircraft. Seller will warrant and defend such title (as
represented under the foregoing) forever against all claims and demands; and
(vi) there are no pending or, to the knowledge of Seller,
threatened actions, or proceedings against, as the case may, be, before any
court, arbitrator or administrative agency which, if adversely determined,
would materially adversely affect the ability of Seller to perform its
obligations under this Purchase Agreement or any of the other Operative
Documents to which it is a party on the Closing Date.
Section 6. Additional Covenants and Agreements of Seller and
Purchaser.
(a) Effective at Closing, Seller shall and does hereby assign,
transfer and set over to Purchaser, any and all warranties, service life
policies, product support agreements and guaranties of manufacturers and
maintenance, supply and overhaul and repair facilities pertaining to the
Aircraft, and any and all equipment associated therewith, if and to the full
extent the same are assignable and transferable. Upon request of Purchaser,
Seller shall give Purchaser all assistance in enforcing the rights of Purchaser
(in the name of Seller or otherwise) arising under such warranties.
(b) Seller agrees to indemnify, reimburse and hold harmless Purchaser
and its shareholders, directors, servants, agents, employees, subcontractors,
successors and assigns, from and against any and all claims, damages, losses,
liabilities, demands, suits, judgments, causes of action, legal proceedings,
whether civil or criminal, penalties, fines, other sanctions, and any costs and
expenses in connection therewith, including costs of investigation and
attorney's fees and expenses, which may result from or arise in any manner out
of, or in relation to breach or default of Seller's representations and
warranties contained in the Operative Documents, including, without limitation,
breach of Seller's warranty of title as set forth herein and in the Bills of
Sale.
(c) Seller shall be responsible for and shall indemnify, defend and
hold Purchaser and its shareholders, directors, servants, agents, employees,
subcontractors, successors and assigns, harmless, on demand, and on an
after-tax basis, from and against all taxes assessed by any governmental
entity, agency or instrumentality of any country, excluding the United States,
whether state or federal, in connection with the sale of the Aircraft to
Purchaser. For purposes of this Purchase Agreement, the term "taxes" shall mean
all taxes, levies, imposts, duties, withholdings, or charges of similar nature,
including, without limitation, any corporation, capital gains, income, gross
receipts, franchise, transfer, sales, use, ad valorem, business, occupation,
personal property, stamp, document or other taxes whatsoever imposed by any
national local taxing or fiscal authority or agency, together with interest
thereon and penalties in respect thereof, and "taxation" shall be construed
accordingly.
(d) Purchaser agrees to indemnify, reimburse and hold harmless Seller
and its shareholders, directors, servants, agents, employees, subcontractors,
successors and assigns, from and against any and all claims, damages, losses,
liabilities, demands, suits, judgments, causes of action, legal proceedings,
whether civil or criminal, penalties, fines, other sanctions, and any costs and
expenses in connection therewith, including costs of investigation and
attorney's fees and expenses, which may result from or arise in any manner out
of, or in relation to breach or default of Purchaser's representations and
warranties contained in the Operative Documents.
(e) The indemnities set forth in this Section 6 shall survive the
closing of the purchase and sale transaction set forth in this Purchase
Agreement.
Section 7. Transaction Costs.
Except as otherwise expressly stated in this Purchase Agreement or the other
Operative Documents, each party shall be responsible for its own expenses (and
that of its respective counsel) incurred in connection with the negotiation,
preparation and execution of the Operative Documents and consummation of the
sale and lease transaction contemplated hereby; provided, however, Seller shall
bear the fees ,costs and expenses incurred in retaining Xxxxxxx xx Xxxxxx to
issue the required legal opinions with respect to the sale hereunder and with
respect to and as required under the Lease and in such firm's making of all
Norwegian filings, registrations and recordings of Lessor's ownership of the
Aircraft and the Lease and the CAA approval of each thereof for registration.
Section 8. RESERVED
Section 9. Miscellaneous.
(a) Notices. All notices required or permitted hereunder shall be in
writing and may be either personally delivered, faxed, telexed or sent by a
reputable international courier service addressed as follows:
If to Purchaser:
AeroCentury Corp.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX, 00000
Attn: Chief Operating Officer
Fax: (000) 000-0000
Telephone: (000) 000-0000
If to Seller:
Wideroe's Flyveselskap ASA
Xxxxxxxxxxx 0
0000 Xxxx, Xxxxxx
Attn: Director of Aircraft Trading
Fax: 000 00 000 00000
With a copy to: Wideroe's Flyveselskap ASA
PO. Box 312
Elvind Lyches vei 10
N-1301 Sandvika, Norway
Attn: Director of Finance
Fax: 000 00 00 00 0000
or at such other address as either party gives to the other from time to time
through proper notice. Any such notice shall be effective and shall be deemed
to have been given when received at the addresses set forth above, as such
addresses are modified as set forth above.
(b) Nonwaiver; Remedies Cumulative. No covenant or condition of this
Purchase Agreement can be waived except by the written consent of the party to
be charged with such waiver. Forbearance or indulgence by any party in any
regard whatsoever shall not constitute a waiver of the covenant or condition to
which such forbearance or indulgence may relate, and until complete performance
thereof, or the written waiver thereof, the forbearing or indulging party shall
be entitled to invoke any remedy available to it under this Purchase Agreement
or by law or in equity or otherwise despite such forbearance or indulgence. No
right or remedy of any party provided for herein is exclusive of any other
right or remedy, but all such rights and remedies are cumulative of every other
right and remedy provided for herein, at law, in equity, by statute, or
otherwise, and may be exercised concurrently or separately from time to time.
The prevailing party shall be entitled to attorney's fees and forum costs.
(d) Applicable Law. This Purchase Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of New
York, USA (without regard to any conflicts of law rule which might result in
the application of the laws of any other jurisdiction), including all matters
of construction, validity and performance.
(e) Severability. Any provision of this Purchase Agreement which may
be prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability in such jurisdiction only,
without invalidating the remaining provisions hereof in such jurisdiction and
without invalidating any of the provisions hereof in any other jurisdiction.
(f) Waiver of Jury Trial. BY ITS SIGNATURE BELOW WRITTEN EACH
PARTY HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS PURCHASE AGREEMENT OR RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY
RELIED ON THE WAIVER IN ENTERING INTO THIS PURCHASE AGREEMENT AND THAT EACH WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
HERETO FURTHER WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER WITH
ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS PURCHASE AGREEMENT, ANY OPERATIVE DOCUMENT, OR ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION. IN THE EVENT OF LITIGATION, THIS
PURCHASE AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(g) Consent to Jurisdiction. Each of Purchaser and Seller irrevocably
agrees that any legal action or proceedings arising out of or in connection
with this Purchase Agreement may be brought in any New York State court or any
United States Federal Court sitting in the State of New York, which shall have
the exclusive jurisdiction to settle any disputes arising out of or in
connection with this Purchase Agreement and irrevocably and unconditionally
submits to the exclusive jurisdiction of such courts. Each of Purchaser and
Seller irrevocably waives any objection it may now or hereafter have to the
laying of venue of any action or proceeding in any court and any claim it may
now or hereafter have that any action or proceeding has been brought in an
inconvenient forum.
(h) Further Assurances. Purchaser and Seller will promptly, at any
time and from time to time, execute and deliver to each other, such further
instruments and documents, and take such further action, as Purchaser and
Seller, as the case may be, may from time to time reasonably request and which
is necessary to carry out this Purchase Agreement and to establish and protect
the rights, interests, and remedies created in favor of Purchaser and Seller.
(i) Exclusivity. This Purchase Agreement is the complete and exclusive
statement of the parties hereto with respect to the subject matter hereof and
supersedes all prior oral and written communications, proposals, agreements,
representations, statements, negotiations and undertakings between the parties
hereto with respect to the subject matter hereof.
(j) No Broker. Purchaser and Seller each hereby represent to the other
that it has not directly or indirectly employed or otherwise procured any
broker in connection with the sale of the Aircraft hereunder for whose
compensation any of the other parties is responsible or liable. Each party
agrees to pay, indemnify, and hold harmless the other from and against any and
all liabilities, losses, costs, damages, claims and expenses (including
attorneys' fees and litigation costs) the other shall ever suffer, incur or be
threatened with because of any claim by any broker or agent claiming by,
through or under the indemnifying party, whether or not meritorious, for any
fee, commission or other compensation with respect to the purchase, sale and
leaseback of the Aircraft.
(k) Assignment. Purchaser shall have the right to transfer,
assign or delegate all, or any portion of its rights and obligations under this
Purchase Agreement and the other Operative Documents, as security to any lender
to Purchaser, including without limitation, the Financing Party, or otherwise,
and upon request of Purchaser, Seller shall execute any all documents or
certifications reasonably requested by Seller necessary to effect such
transfer, assignment or delegation and with respect to any such transfer,
assignment or delegation by Purchaser after the Closing, Purchaser shall bear
Seller's reasonable, direct, out-of-pocket costs (including reasonable legal
fees) in delivering such further documents or certifications requested.
(l) Confidentiality. Each party to this Purchase Agreement agrees that
it will treat this Purchase Agreement, each of the other Operative Documents,
and the contents thereof as privileged and confidential and will not disclose,
or cause to be disclosed, the terms, hereof or thereof to any Person, except
that any such information may be disclosed (a) to the extent necessary in
connection with the enforcement of such party's rights under any Operative
Documents, (b) to such party's agents, attorneys and accountants, (c) to the
extent required pursuant to applicable law or by any governmental authority
(including pursuant to any applicable SEC regulations and as may be required by
the CAA), (d) to the extent that prior to such disclosure, such information is
publicly available (if such availability is not the result of the disclosing
party's breach of this subsection (l), and (e) with the prior written consent
of all parties hereto.
(m) Counterparts. This document may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
but one and the same original.
IN WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement on the date first set forth above.
PURCHASER
AEROCENTURY CORP.
By: ____________________
Title: _________________
SELLER
WIDEROE'S FLYVESELSKAP ASA
By: ____________________
Title: _________________
[EXHIBITS OMITTED]
