AIRCRAFT PURCHASE AGREEMENT Dated as of the ____ day of December, 2005 between not in its individual capacity, but solely as owner trustee as Seller, and CORPORACIÓN YGNUS AIR, S.A. as Buyer, in respect of one McDonnell Douglas DC-8-73F Aircraft,...
Exhibit 10.1
“Buyer Indemnitees” has the meaning set forth in Article 10.2 hereof.
Execution
Version
Dated
as
of the ____ day of December, 2005
between
U.S.
BANK NATIONAL ASSOCIATION,
not
in
its individual capacity, but solely as owner trustee
as
Seller,
and
CORPORACIÓN
YGNUS AIR, S.A.
as
Buyer,
in
respect of one
XxXxxxxxx Xxxxxxx DC-8-73F
Aircraft,
bearing
manufacturer’s serial number 46133
with
Spanish
registration xxxx EC-IGZ equipped with
four
CFM
International, Inc. 56-2C1 engines bearing manufacturer's
serial
numbers 692514, 692542, 693444 and 692506
TABLE
OF CONTENTS
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Heading
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Page
Number
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ARTICLE
1: DEFINITIONS
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1
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ARTICLE
2: AGREEMENT TO SELL AND PURCHASE
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3
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2.1
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Agreement
to Sell and Purchase
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3
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2.2
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Purchase
Price
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3
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2.3
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Security
Deposit
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3
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2.4
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Commitment
Fee
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3
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2.5
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Lease
Payments
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4
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2.6
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Balance
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4
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ARTICLE
3: CLOSING AND DELIVERY
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4
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3.1
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Buyer’s
Conditions Precedent
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4
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3.2
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Buyer’s
Closing Deliveries
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4
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3.3
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Seller’s
Conditions Precedent
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4
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3.4
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Seller’s
Closing Deliveries
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5
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3.5
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Lease
Termination
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5
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3.6
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Warranty
Xxxx of Sale
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5
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3.7
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Risk
of Loss Prior to Closing
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5
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3.8
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Risk
of Loss after Closing
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5
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ARTICLE
4: REPRESENTATIONS, WARRANTIES & LIMITATIONS
|
5
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4.1
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Representations
and Warranties of Seller
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5
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4.2
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Representations
and Warranties of Buyer
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6
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4.3
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Disclaimer
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6
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ARTICLE
5: RESERVED RIGHTS
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7
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ARTICLE
6: THIRD PARTY WARRANTIES
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7
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ARTICLE
7: TAXES
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7
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ARTICLE
8: ESCROW
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8
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ARTICLE
9: NOTICES
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8
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ARTICLE
10: INDEMNIFICATION
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9
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10.1
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Buyer
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9
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10.2
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Seller
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10
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ARTICLE
11: INSURANCE
|
10
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11.1
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Minimum
Coverages
|
10
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11.2
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Contents
of Policies
|
10
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11.3
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Certificate
of Insurance
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10
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ARTICLE
12: FURTHER ASSURANCES
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11
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ARTICLE
13: MISCELLANEOUS
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11
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13.1
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Time
is of the Essence
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11
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13.2
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Confidentiality
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11
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13.3
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Binding
Effect
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11
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13.4
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Transaction
Costs and Expenses
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11
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13.5
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Entire
Agreement
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11
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13.6
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Amendments
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11
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13.7
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Assignment
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12
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13.8
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Headings
and References
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12
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13.9
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Counterparts
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12
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13.10
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Non-Waiver
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12
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13.11
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Survival
of Representations and Warranties
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12
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13.12
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Invalid
Provisions
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12
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13.13
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Currency
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12
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13.14
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Governing
Law
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12
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EXHIBIT
A: WARRANTY XXXX OF SALE
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|||
This
AIRCRAFT
PURCHASE AGREEMENT
dated as
of the ______day of December 2005, is between U.S.
Bank National Association,
a
national banking association, not in its individual capacity, but solely as
owner trustee, ("Seller"), and
Corporación Ygnus Air, S.A.
a
corporation formed under the laws of Spain, formally
known as Cygnus Air, S.A
(“Buyer”).
WHEREAS,
Seller
owns the Aircraft that are the subject matter of this Agreement;
and
WHEREAS,
Buyer
desires to purchase the Aircraft from Seller, and Seller is willing to sell
the
Aircraft to Buyer, on the terms and subject to the conditions set forth in
this
Agreement;
NOW
THEREFORE,
in
consideration of the foregoing premises and the mutual promises and covenants
of
the parties set forth herein, and for other good and valuable consideration
the
adequacy and receipt of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE
1: DEFINITIONS
The
following terms shall have the following respective meanings for all purposes
of
this Agreement:
"Agreement"
means
this Aircraft Purchase Agreement.
"Aircraft"
means,
collectively, the Airframes, the Engines and the Aircraft Documents applicable
thereto.
"Aircraft
Documents"
means
all logs, manuals, data and inspection, modification, maintenance and overhaul
records in Seller’s possession associated with Airframes and
Engines.
"Airframes"
means
one
XxXxxxxxx Xxxxxxx DC-8-73F airframe bearing manufacturer's serial number 46133,
with Spanish registration xxxx EC-IGZ, together with any and all avionics,
appliances, components, parts, instruments, appurtenances, accessories,
furnishings or other equipment of whatever nature (excluding engines)
incorporated therein, installed thereon, and attached thereto.
“Applicable
Law"
means,
without limitation, all applicable laws, treaties, international agreements,
decisions and orders of any court, arbitration or governmental agency or
authority and rules, regulations, orders, directives, licenses and permits
of
any governmental body, instrumentality, agency or authority.
"Balance"
has
the
meaning set forth in Article 2.6 hereof.
“Basic
Rent”
has the
meaning set forth in the Lease.
“Buyer Indemnitees” has the meaning set forth in Article 10.2 hereof.
“Closing”
means
the purchase by Buyer of the Aircraft from Seller as contemplated in the
Agreement.
"Closing
Date" means
the
date on which all of the actions described in Article 3 shall have been taken,
which shall be on or before December 15, 2005, or such other date as the parties
may mutually agree in writing.
“Commitment
Fee” has
the
meaning set forth in Section 2.4 hereof.
“Dollar”
or
“$”
means
the
lawful currency of the United States of America.
"Effective
Date"
means
the date of this Agreement.
“Engine"
means
those certain CFM International, Inc. 56-2C1 engines bearing manufacturer’s
serial numbers 692514, 692542, 693444 and 692506, together with any and all
avionics, appliances, components, parts, instruments, appurtenances,
accessories, furnishings or other equipment of whatever nature incorporated
in,
installed on, and attached to, either such engine.
“IATS”
means
Insured Aircraft Title Services, X.X. Xxx 00000, Xxxxxxxx Xxxx, Xxxxxxxx, 00000,
telephone (000) 000-0000 and facsimile (000) 000-0000
“Incumbency
Certificate”
means
that certificate executed, notarized and apostilled by Seller’s officer
confirming that the signatory thereto has the authority to execute the Warranty
Xxxx of Sale.
“Lease”
means
that Lease Agreement dated June 28, 2002 between Buyer and Seller as amended
by
Amendment Number One to Lease Agreement dated December 1, 2004, with respect
to
the Aircraft.
“Maintenance
Reserves” has
the
meaning set forth in the Lease.
“Non-Applied
Basic Rent Amount”
has the
meaning set forth in Article 2.5 hereof.
"Purchase
Price" has
the
meaning set forth in Article 2.2 hereof.
“Rent
Date”
has the
meaning set forth in the Lease.
"Security
Deposit" has
the
meaning set forth in Article 2.3 hereof.
"Seller
Indemnitees" means
Seller and its officers, directors, shareholders, managers, governors, members,
employees, agents, contractors, affiliated companies, lenders, successors,
and
permitted assignees.
"Taxes"
means
all
taxes, duties, levies, imposts, or fees of any kind which may be assessed or
levied against a party by any Taxing Jurisdiction as a result of the sale,
transfer or delivery of the Aircraft to Buyer, or the registration, ownership
or
use of the Aircraft by Buyer after delivery; provided, however, that "Taxes"
shall not include (i) any
tax
that would not have been imposed but for the gross negligence or willful
misconduct of Seller; (ii) any tax that would not have been imposed but for
the
inaccuracy of any representation of Seller in Article 4.1 hereof; (iii) any
capital gains, sales, gross receipts, income or other similar taxes applicable
to Seller; or (iv) any taxes, duties or fees assessed or levied by the United
States federal, state, or local taxing authority or any of its governmental
authorities, including, without limitation, those relating to the export of
the
Aircraft, formalization of the sale, notary and register fees, and employment,
which taxes, duties and fees shall be the sole responsibility of
Seller.
"Taxing
Jurisdiction" means
any
federal, state, county, local, airport, district, foreign, or governmental
agency thereof or therein that imposes Taxes.
“Warranty Xxxx
of Sale”
means
a
notarized and apostilled Warranty Xxxx of Sale substantially in the form of
Exhibit
A.
ARTICLE
2: AGREEMENT TO SELL AND PURCHASE
2.1 Agreement
to Sell and Purchase. Seller
agrees to sell and deliver the Aircraft to Buyer. Buyer agrees to purchase
and
accept delivery of the Aircraft from Seller in accordance with and subject
to
the terms and conditions set forth in this Agreement.
2.2 Purchase
Price. The
purchase price for the Aircraft shall be $3,150,000 (the "Purchase Price").
The
full amount of the Purchase Price is due from Buyer and payable at Closing.
2.3 Security
Deposit.
Pursuant
to the terms of the Lease, Buyer deposited to Seller, and Seller acknowledges
receipt from Buyer of, the amount of $330,000 (the “Security Deposit”). The
Security Deposit shall be applied towards the Purchase Price at Closing. In
the
event the conditions in Sections 3.1 and 3.3 are not met and this transaction
fails to close, the Security Deposit shall remain subject to the terms and
conditions of the Lease.
2.4 Commitment
Fee. Seller
currently holds certain Airframe “C” Check Reserves in the amount of $221,746.06
that would have been reimbursable to Buyer pursuant to the Lease, (the
“Commitment Fee”). The parties acknowledge that Seller shall have no obligation
to pay or reimburse the Commitment Fee to Buyer, but Seller shall apply the
Commitment Fee towards the Purchase Price at Closing. Notwithstanding the
foregoing, (i) in the event this transaction fails to close due to Buyer, the
parties acknowledge that Seller shall have no obligation to pay or reimburse
the
Commitment Fee to Buyer under the Lease and (ii) in the event Seller fails
to
meet the conditions in Section 3.1, directly resulting in the failure of this
transaction to close, the Commitment Fee shall remain subject to the terms
and
conditions of the Lease.
2.5 Lease
Payments.
Buyer
has paid to Seller, pursuant to the terms of the Lease, the Basic Rent for
December, 2005, as due and payable on the Rent Date. The Basic Rent for December
shall be prorated per diem up to and including the Closing Date and any Basic
Rent not applied for December pursuant to the Lease (the “Non-Applied Basic Rent
Amount”) shall be applied towards the Maintenance Reserves per Section 3.3(b).
In the event the conditions in Article 3 are not met and this transaction fails
to close, the Basic Rent shall remain subject to the terms and conditions of
the
Lease.
2.6 Balance.
At
Closing, Buyer shall pay to Seller via wire transfer the balance of the Purchase
Price in the amount of $2,598,253.94 (the "Balance"). Payment shall be made
to
the following account:
Bank:
Wilmington Trust Company
Address:
Xxxxxx Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000-000
ABA
#:
000000000
Acct.
#:
068985-000.1
Attn:
Xxxx X. Xxxx
ARTICLE
3: CLOSING AND DELIVERY
3.1 Buyer's
Conditions Precedent.
Buyer's
obligation to purchase and accept delivery of the Aircraft from Seller shall
be
subject to the satisfaction of each of the following conditions:
a. Seller
having delivered the Warranty Xxxx of Sale.
b. Seller
having delivered the Incumbency Certificate.
3.2 Buyer's
Closing Deliveries. Upon
satisfaction of the conditions set forth in Article 3.1 hereof, Buyer shall
pay
the Balance of the Purchase Price by wire transfer in immediately available
funds to an account designated by Seller in Article 2.6.
3.3 Seller's
Conditions Precedent.
Seller's
obligation to sell and deliver the Aircraft to Buyer shall be subject to the
satisfaction of each of the following conditions:
a.
Buyer
having delivered to Seller a report on the Aircraft in the form set out in
Schedule 6 of the Lease for the period December 1, 2005, to the Closing
Date.
b.
Buyer
having paid, and Seller having received all maintenance reserves “Maintenance
Reserves” due and payable up to and including the Closing Date as set forth in
the Lease. In the event that Engine 692506 has been removed off-wing due to
a
life limited part limiter, Maintenance Reserves for such engine shall not be
due
from the point in time when such engine was removed off-wing.
c. Buyer
having paid, and Seller having received all basic rent “Basic Rent” payments due
and payable up to and including the Closing Date as set forth in the
Lease.
d. Buyer
having paid, and Seller having received, the Security Deposit, the Commitment
Fee and the Balance in full.
e. Buyer
shall have delivered to Seller the Certificate of Insurance in accordance with
Article 10.3 hereof.
f. Seller
shall have received satisfactory Seller’s board resolutions with respect to
the due authorization of the transaction contemplated by this
Agreement.
3.4 Seller's
Closing Deliveries.
Upon
satisfaction of the conditions set forth in Article 3.3 hereof, Seller shall
execute and deliver the Warranty Xxxx of Sale to Buyer.
3.5 Lease
Termination. Buyer
and
Seller agree that upon the transfer of Seller’s right, title and interest in and
to the Aircraft, the Lease shall terminate and shall be of no further force
and
effect.
3.6 Warranty
Xxxx of Sale. The
Warranty Xxxx of Sale is intended to supplement the provisions of this
Agreement. To the extent that any of the provisions contained in the Warranty
Xxxx of Sale are inconsistent with or contrary to the provisions of this
Agreement or in the event of a disagreement related to this transaction, the
provisions of this Agreement shall govern. The Warranty Xxxx of Sale is
incorporated into this Agreement and the rights and obligations thereunder
are
not separate from this Agreement and the documents are one and the same. Buyer
shall be entitled to have this Agreement duly notarized, apostilled, translated
into Spanish and validly filed under the laws of the State of Registration,
including without limitation, with the Aviation Authorities and any other
applicable Governmental Entities and non-governmental authorities.
3.7 Risk
of Loss Prior to Closing. If
the
Aircraft shall be destroyed or damaged beyond economic repair prior to the
Closing Date, then upon written notice thereof from either party hereto to
the
other party hereto, this Agreement shall terminate and the terms of the Lease
shall govern the loss.
3.8 Risk
of Loss after Closing. Risk
of
loss of the Aircraft shall pass from Seller to Buyer upon the Closing
Date.
ARTICLE
4: REPRESENTATIONS, WARRANTIES & LIMITATIONS
4.1 Representations
and Warranties of Seller. Seller
hereby represents and warrants as of the Effective Date and the Closing Date
as
follows:
a. Seller
is
the owner of the Aircraft and the execution and delivery of the Warranty Xxxx
of
Sale shall convey to Buyer all right, title and interest in and to the Aircraft,
free of any and all liens, claims, encumbrances or rights of others.
b. Seller
is
a national banking association organized and validly existing under the laws
of
the United States of America, possessing perpetual existence as a legal entity,
with the capacity to xxx and be sued in its own name, and with full power and
legal right to carry on its business as currently conducted and to execute,
deliver and perform its obligations arising under this Agreement and the
Warranty Xxxx of Sale.
c. The
execution, delivery, and performance by Seller of this Agreement and the
Warranty Xxxx of Sale have been duly authorized by all necessary action on
behalf of Seller and do not conflict with or result in any breach of any of
the
terms or constitute a default under any document, instrument, or agreement
to
which Seller is a party.
d. This
Agreement and, upon the execution and delivery thereof, the Warranty Xxxx of
Sale have been duly executed, delivered and apostilled by Seller and constitute
the legal, valid, and binding obligations of Seller enforceable against Seller
in accordance with its respective terms.
e. Seller
has not incurred any broker or finder’s fees related to this transaction for
which Buyer would be responsible.
4.2 Representations
and Warranties of Buyer.
Buyer
hereby warrants as of the Effective Date and the Closing Date as
follows:
a. Buyer
is
a corporation organized and validly existing under the laws of Spain, possessing
perpetual existence as a legal entity, with the capacity to xxx and be sued
in
its own name, and with full power and legal right to carry on its business
as
currently conducted, and to execute, deliver and perform the provisions of
this
Agreement.
b. The
execution, delivery, and performance by Buyer of this Agreement has been duly
authorized by all necessary action on behalf of Buyer and do not conflict with
or result in any breach of any of the terms or constitute a default under any
document, instrument, or agreement to which Buyer is a party.
c. This
Agreement has been duly executed and delivered by Buyer and constitutes the
legal, valid, and binding obligations of Buyer enforceable against Buyer in
accordance with its terms.
d. Buyer
has
not incurred any broker or finder fee for which Seller would be
responsible.
4.3 DISCLAIMER.
BUYER
ACKNOWLEDGES THAT IT IS THE LESSEE AND SOLE OPERATOR OF THE AIRCRAFT AND AS
SUCH
THERE WILL BE NO TECHNICAL CONDITIONS TO CLOSE THIS TRANSACTION WHATSOEVER.
THE
AIRCRAFT IS BEING SOLD HEREUNDER ON A COMPLETELY "AS IS" "WHERE IS" AND "WITH
ALL FAULTS" BASIS, SUBJECT TO THE REPRESENTATIONS AND WARRANTIES SET FORTH
IN
ARTICLE 4.1 HEREOF. SELLER'S EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH
IN
ARTICLE 4.1 HEREOF ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS OR
WARRANTIES WHATSOEVER BY SELLER, EXPRESS OR IMPLIED OR ARISING BY OPERATION
OF
LAW OR IN EQUITY, AND SELLER HAS NOT MADE, AND BUYER HEREBY WAIVES, RELEASES,
DISCLAIMS, AND RENOUNCES ALL EXPECTATION OF OR RELIANCE UPON, ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER (OTHER THAN THOSE SET FORTH IN ARTICLE
4.1 HEREOF), WITH RESPECT TO THE AIRCRAFT OR ANY PART THEREOF, INCLUDING,
WITHOUT LIMITATION, REPRESENTATIONS AND WARRANTIES AS TO THE AIRWORTHINESS,
VALUE, CONDITION, DESIGN, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR USE
OF
THE AIRCRAFT, AND ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS
OR
IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY ARISING FROM A
COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE). BUYER HEREBY WAIVES ANY
AND
ALL RIGHTS, CLAIMS, AND REMEDIES OF BUYER AGAINST SELLER, EXPRESS OR IMPLIED
OR
ARISING BY OPERATION OF LAW OR IN EQUITY, ARISING FROM ANY SUCH REPRESENTATION
OR WARRANTY (OTHER THAN THOSE SET FORTH IN ARTICLE 4.1 HEREOF), OR FOR ANY
LIABILITY, CLAIM, OR REMEDY FOR LOSS OF OR DAMAGE TO THE AIRCRAFT, FOR LOSS
OF
USE, REVENUE, OR PROFIT WITH RESPECT TO THE AIRCRAFT, OR FOR ANY OTHER INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER.
ARTICLE
5: RESERVED
RIGHTS
With
the
exception of the Commitment Fee as described in Section 2.4, the Lease shall
remain in full force and effect (i) until the Closing and (ii) in the event
this
transaction fails to Close.
ARTICLE
6: THIRD PARTY WARRANTIES
To
the
extent that any warranties from manufacturers, service providers, or suppliers
are still in effect with respect to the Aircraft (to
the
extent that such rights are assignable and are not extinguished as a result
of
this Agreement),
such
warranties and all rights thereunder shall without further action be irrevocably
assigned to Buyer effective as of Closing.
ARTICLE
7: TAXES
Buyer
shall be responsible for, shall defend, indemnify and hold harmless Seller
against, and shall pay promptly when due or on demand any and all Taxes of
any
kind or nature whatsoever assessed or levied by any Taxing Jurisdiction.
The
amount of any payment to be made by Buyer to Seller hereunder, including,
without limitation, payments in respect of the Security Deposit, the Commitment
Fee and the Balance, shall be net to Seller of any and all Taxes for which
Buyer
is or may be responsible.
ARTICLE
8: ESCROW
IATS
shall serve as escrow agent for the transaction contemplated herein and Seller,
Buyer and IATS shall enter into a separate escrow agreement subject to the
terms
in this Article 8. Seller shall deliver to IATS an original executed, notarized
and apostilled Warranty Xxxx of Sale. IATS shall hold the Warranty Xxxx of
Sale
in escrow and not release it until such time as it receives the funds necessary
to consummate the transaction and to comply with these escrow instructions,
including, but not limited to, the following:
a. On
behalf
of Seller receipt of all Maintenance Reserves due and payable up to and
including the Closing Date as set forth in the Lease minus the Non-Applied
Basic
Rent Amount.
b. Receipt
of the Balance of the Purchase Price on behalf of Seller in the amount of
$2,598,253.94.
c. IATS
shall confirm receipt of Maintenance Reserves and the Balance with Seller as
soon as these funds have been deposited with IATS. The Maintenance Reserves
and
Balance should be distributed in its entirety in accordance with the wiring
instructions set forth in Section 2.6. IATS shall provide Seller with a federal
reference number for the wire transaction immediately upon
availability.
d. Upon
initiation of the wire transfer, IATS shall be further instructed to date the
Warranty Xxxx of Sale as of the Closing Date and to deliver the Warranty Xxxx
of
Sale to Buyer.
Buyer
shall be responsible for any cost and expenses related to or resulting from
IATS
and this Article 8. Invoices from IATS can be sent directly to Buyer at the
address provided in Article 9 hereof.
ARTICLE 9: NOTICES
All
communications and notices hereunder shall be in writing and shall be deemed
made (i) when delivered by hand, or (ii) three calendar days after being sent
by
overnight courier, or (iii) when transmitted by means of facsimile or other
wire
transmission (with request for assurance of receipt in a manner typical with
respect to communications of that type and followed promptly with the original
thereof) in each case at the address set forth below:
If
to the Seller:
U.S.
Bank
National Association,
as
Owner
Trustee
00
Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx.
Xxxx,
XX 00000-0000
Xxxxxx
Xxxxxx of America
Attn:
Corporate Trust Department
Fax:
x0
(000) 000-0000
Telephone
No.: x0 (000) 000-0000
with
copies to:
Equis
Financial Group L.P.
0000
Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Xxxxxx
Xxxxxx of America
Attn:
Xxxxx Xxxxx
Phone:
x0
(000) 000-0000
Fax:
x0
(000) 000-0000
and:
Xx.
Xxx
Xxxxxxxx
Sigma
Aircraft Management
Executive
Vice President
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
Xxxxxx
Xxxxxx of America
Worldfax.:
x0 (000) 000-0000
Telephone.:
x00 000 000 0000
and:
Xxxxx
X.
Xxxxxxx, Esq.
Xxxxxxxx,
Xxxx & Xxxxxxx, P.A.
0000
Xxxx
Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxx,
Xxxxxxxxx 00000
Xxxxxx
Xxxxxx of America
Telephone:
x0 (000) 000-0000
Telefax:
x0 (000) 000-0000
If
to the Buyer:
Corporación
Ygnus Air, S.A.
Xx. Xxxxxx Xxxxxxxx xx Xxxxxxx
Terminal
de Aviaciion General, 2a planta
Xxxxxxxxxx
xx Xxxxxx-Xxxxxxx
00000-
Xxxxxx
Xxxxx
Telefax:
+ 00 00 000 00 00
Telephone:
+ 00 00 000 00 00
ARTICLE
10: INDEMNIFICATION
10.1 Buyer.
Buyer
shall release, indemnify, reimburse, defend and hold harmless all Seller
Indemnitees on demand, from and against any and all claims, damages (whether
direct, indirect, incidental, special or consequential), losses, charges, fees,
liabilities, obligations, demands, suits, judgments, actions and other legal
proceedings (whether civil or criminal), penalties, fines, sanctions, and any
reasonable costs, expenses and attorneys' fees imposed on the Seller Indemnitees
or asserted against, or suffered or incurred by Seller Indemnitees, which in
any
way may result from, arise out of, or are in any manner related to (a) a breach
of any agreement, representation or warranty by Buyer under this Agreement,
and
(b) any event occurring related to the use of or operation of the Aircraft
under
the Lease or after Closing, including, without limitation, any injury to or
death of any person, and for any loss of, damage to, or destruction of any
property whatsoever, in any manner, arising out of the possession, delivery,
non-delivery, ownership, condition, maintenance, lease, disposition, operation
or use of the Aircraft.
10.2 Seller. Seller
shall
release, indemnify, reimburse, defend and hold harmless
Buyer
and
Buyer's officers, directors, shareholders, managers, governors, members,
employees, agents, contractors, affiliated companies, lenders, successors,
and
permitted assignees
("Buyer
Indemnitees") on
demand, from and against any and all claims, damages (whether direct, indirect,
incidental, special or consequential), losses, charges, fees, liabilities,
obligations, demands, suits, judgments, actions and other legal proceedings
(whether civil or criminal), penalties, fines, sanctions, and any reasonable
costs, expenses and attorneys' fees imposed on the Buyer Indemnitees or asserted
against, or suffered or incurred by Buyer Indemnitees, which in any way may
result from, arise out of, or are in any manner related to a breach of any
agreement, representation or warranty by Seller under this Agreement.
ARTICLE
11: INSURANCE
11.1 Minimum
Coverages. For
a
period of two years commencing on the Closing Date, Buyer shall, at its sole
expense, maintain or cause its lessees or successors to maintain, with a
reputable insurer in a leading insurance market aircraft third-party legal
liability insurance covering the Seller Indemnitees as additional insureds
to
the same extent that Buyer or its successors are covered on such policies.
11.2 Contents
of Policies. All
insurance coverage under Article 11.1 hereof shall be endorsed: (i) to name
all
Seller Indemnitees as additional insureds thereunder; (ii) to expressly provide
that all of the provisions thereof, except the limits of liability, shall
operate in the same manner as if there were a separate policy covering each
insured and shall waive, any right of subrogation of the insurers against each
additional insured; (iii) to expressly provide that, in respect of the
respective interests of each additional insured in such policies, the insurance
shall not be invalidated by any action or inaction of any Buyer Indemnitee
or
any other third party and shall insure the respective interests of the
additional insureds, as they appear, regardless of any breach or violation
of
any warranty, declaration or condition contained in such policies by any Buyer
Indemnitee or any other third party; (iv) to expressly provide that such
insurance shall be primary without any right of contribution from any other
insurance which is carried by any additional insured; (v) to expressly waive
any
right of subrogation against Seller Indemnitees; and (vi) to expressly cover
the
contractual liability to each of the additional insureds assumed by Buyer in
Article11.1 hereof.
11.3 Certificate
of Insurance. Buyer
shall, upon Seller’s request, provide Seller with a certificate of insurance
from time to time (but not more than once per year) prior to the date two years
after the Closing Date.
ARTICLE
12: FURTHER ASSURANCES
The
parties will accommodate reasonable requests for additional documentation to
facilitate the purchase and sale of the Aircraft. Each party shall execute
all
documents and do all other things that may be reasonably requested by the other
party in order to fully and adequately document the purchase and sale of the
Aircraft, whether prior to, in connection with, or subsequent to
Closing.
ARTICLE
13: MISCELLANEOUS
13.1 Time
is of the Essence. Unless
stated expressly to the contrary herein, time shall be of the essence for all
events contemplated hereunder.
13.2 Confidentiality.
Each
party hereto agrees that it will treat the Purchase Price as privileged and
confidential and will not, without the prior written consent of the other,
disclose such Purchase Price to any third party, except for disclosure to its
lenders or other funding sources, attorneys, auditors or its successors or
permitted assigns and as may be required by applicable law or governmental
regulations or as may be necessary to effect the transactions contemplated
hereby, in which case the party so disclosing shall use good faith efforts
to
limit disclosure to such third parties on a need-to know basis. In connection
with any such disclosure the party making such disclosure shall request and
use
its best efforts to obtain confidential treatment of such
information.
13.3 Binding
Effect. This
Agreement shall inure to the benefit of and be binding upon each of the parties
hereto and their respective successors and permitted assigns.
13.4 Transaction
Costs and Expenses. Whether
or not the transaction contemplated hereby is consummated, each of Seller and
Buyer shall bear and be responsible for its own costs and expenses incurred
in
connection with the negotiation, preparation, execution and delivery of this
Agreement, and any other agreements, documents and instruments relating hereto,
and neither Seller nor Buyer shall have any right of reimbursement or indemnity
for such costs and expenses as against each other.
13.5 Entire
Agreement. This
Agreement constitutes, on and as of the Effective Date, the entire agreement
of
the parties hereto with respect to the subject matter hereof, and all prior
or
contemporaneous understandings or agreements, whether written or oral, between
the parties hereto with respect to the subject matter hereof are hereby
superseded in their entirety.
13.6 Amendments.
No
provision of this Agreement may be amended, changed, waived or discharged
orally, but only by an instrument in writing specifying the provision intended
to be amended, changed, waived or discharged and signed by the party against
whom enforcement of such amendment, change, waiver or discharge is sought and
no
provision of this Agreement shall be varied, contradicted or explained by any
oral agreement, course of dealing or performance or any other matter not set
forth in an agreement in writing and signed by the party against whom
enforcement of such agreement is sought.
13.7 Assignment.
Buyer
may
assign its rights and delegate its obligations under this Agreement to any
affiliate of Buyer (or
any
trust of which any of them is a beneficiary);
provided, however, that Buyer shall guaranty, in writing in a form acceptable
to
Seller, the full and timely performance by any such assignee of all of Buyer's
obligations arising under this Agreement. Except as otherwise provided herein,
neither party may assign any of its rights or delegate any of its obligations
hereunder without the prior written consent of the other party.
13.8 Headings
and References. The
division of this Agreement into Articles, and the insertion of headings, are
for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
13.9 Counterparts.
This
Agreement may be fully executed in any number of separate counterparts by each
of the parties hereto, all such counterparts together constituting but one
and
the same instrument. Copies of this Agreement and the documents to be delivered
hereunder, transmitted by facsimile, shall be deemed to be and treated the
same
as executed originals; provided that the original of any document delivered
by
facsimile transmission shall, upon request, also be delivered by mail or private
delivery service.
13.10 Non-Waiver.
Any
failure at any time of either party to enforce any provision of this Agreement
shall not constitute a waiver of such provision or prejudice the right of such
party to enforce such provision at any subsequent time.
13.11 Survival
of Representations and Warranties. The
representations and warranties herein of each party hereto shall survive the
execution and delivery of, and the consummation of the transactions contemplated
by, this Agreement.
13.12 Invalid
Provisions. If
any
provision of this Agreement is or becomes void or unenforceable by force or
operation of law, the other provisions shall remain valid and
enforceable.
13.13 Currency.
All
prices, amounts and payments referred to herein shall be in United States
Dollars.
13.14 Governing
Law. This
Agreement shall in all respects, including all matters of construction, validity
and performance, be governed by, and construed and enforced in accordance with,
the laws of the State of New York, as would be applicable to contracts entered
into in that state between citizens of that state and to be performed wholly
within that state, without reference to any rules governing conflicts of laws.
The parties consent to service of process by mail courier or hand delivery,
at
their regular business address from time to time.
[Signature
Page Follows]
IN
WITNESS WHEREOF,
the
parties have caused this Aircraft
Purchase Agreement
to be
executed by their duly authorized representatives as of the Effective
Date.
BUYER:
CORPORACIÓN
YGNUS AIR, S.A.
By:
_____________________
Print: _____________________
Title: _____________________
By:
_____________________
Print: _____________________
Title: _____________________
SELLER:
U.S.
BANK NATIONAL ASSOCIATION,
not
in
its individual capacity, but solely as owner trustee
By:
_____________________
Print: _____________________
Title: _____________________
EXHIBIT
A
INTERNATIONAL
AIRCRAFT XXXX OF SALE (Commercial)
KNOW
ALL
MEN BY THESE PRESENTS that the undersigned, U.S.
BANK NATIONAL ASSOCIATION,
not in
its individual capacity, but solely as owner trustee (hereafter the “Seller”) is
the owner of full beneficial title to that certain XxXxxxxxx Xxxxxxx DC-8-73F
Aircraft with Spanish registration xxxx EC-IGZ (hereafter the “Aircraft”),
Manufacturer’s Serial Number 46133, together with four CFM Internal, Inc. 56-2C1
engines bearing Manufacturer's Serial Numbers 692514, 692542, 693444 and 692506,
respectively.
Seller
has received from CORPORACIÓN
YGNUS AIR, S.A. (hereafter
the “Buyer”) the sum of US $3,150,000 which constitutes full payment due from
Buyer for the purchase of the Aircraft.
Seller
therefore, does this _____ day of December, 2005, grant, convey, transfer,
bargain and sell, deliver and set over all of their rights, title and interest
in and to the above described Aircraft to Buyer.
Seller
hereby warrants to aforesaid Buyer, their successors and assigns, that there
is
hereby conveyed to said Buyer good and marketable title to the aforesaid
Aircraft.
IN
WITNESS WHEREOF, the undersigned, Seller execute this document in the above
mentioned date.
Receipt
of Conformity:
Signature
of the Seller:
Corporación
Ygnus Air, S.A.
U.S.
Bank
National Association, not in its individual capacity but solely as owner
trustee
By:____________________ By:_______________________
Name: Name:
Title:
Title:
I_____________Public
Notary of the State of ___________________ Certify that ___________________;
as
representative of the Seller, can and is authorized to sell the Aircraft
previously described.
In
witness whereof, I sign this reason in the City of _____________________ on
___________, 2005.
___________________________
Signature
and Stamp of Notary
