PLAN SPONSOR AGREEMENT
28491052.1
THIS PLAN SPONSOR AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY
SECURITIES OR A SOLICITATION OF VOTES WITH RESPECT TO A CHAPTER 11
PLAN OF REORGANIZATION. ANY SUCH OFFER OR SOLICITATION WILL COMPLY
WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE
BANKRUPTCY CODE. ACCEPTANCES OR REJECTIONS WITH RESPECT TO A
CHAPTER 11 PLAN OF REORGANIZATION MAY NOT BE SOLICITED UNTIL A
DISCLOSURE STATEMENT HAS BEEN APPROVED BY THE BANKRUPTCY
COURT.
This
PLAN SPONSOR AGREEMENT (as amended, supplemented, or otherwise
modified from time to time together with all exhibits attached
hereto and incorporated herein, this “Agreement”),
dated as of August [16], 2021, is entered into by and among
AeroCentury Corp. (“AeroCentury”), JetFleet Holding
Corp. (“JHC)”, and JetFleet Management Corp.
(“JMC,” and collectively with AeroCentury and JHC, the
“Debtors”) and Xxxxxxx Xx, Xxx Xxxx, Xxxx Xx, Xxx
Xxxxx, Xx Xxxx, TongTong Ma, Xxxxx Xxxxx, Xxxxxx Xx, and Xxxx Xxxxx
(collectively, the “Plan Sponsor”). The Debtors and the
Plan Sponsor are referred to herein as the “Parties”
and individually as a Party. Capitalized terms used but not
otherwise defined herein shall have the meaning ascribed to such
terms in the Plan (as defined below).
RECITALS
WHEREAS, on March 29, 2021, the Debtors
commenced voluntary cases under chapter 11 of title 11 of the
United States Code, 11 U.S.C. §§ 101 et seq. (the “Bankruptcy
Code”), which are being jointly administered under the
caption In re AeroCentury
Corp., et al., Case No. 21-10636 (JTD) (the
“Chapter 11 Cases”) in the United States Bankruptcy
Court for the District of Delaware (the “Bankruptcy
Court”);
WHEREAS, the Debtors filed a Combined
Disclosure Statement and Joint Chapter 11 Plan of AeroCentury
Corp., and its Affiliated Debtors dated July 14, 2021 (the
“Plan,” as it may be altered, amended, modified or
supplemented from time to time including in accordance with any
documents submitted in support thereof and the Bankruptcy Code or
the Bankruptcy Rules) [Docket No. 225];
WHEREAS, the Bankruptcy Court approved
the Plan on an interim basis for solicitation purposes only
pursuant to the Solicitation Procedures Order [Docket No.
222];
WHEREAS, the Plan consists of a toggle
between (i) the Sponsored Plan, which, pursuant to the terms of the
Plan Sponsor Agreement, the Debtors, and the Plan Sponsor will
agree to a restructuring of the Debtors’ businesses that will
be implemented through the Sponsored Plan (collectively, the
“Restructuring Transactions”) and (ii) the Stand-Alone
Plan, whereby the Debtors’ remaining Assets will vest in the
Post-Effective Date Debtors and be monetized by the Plan
Administrator;
WHEREAS, in connection with the Chapter
11 Cases and the Plan, AeroCentury and Plan Sponsor have engaged in
good faith, arm’s length negotiations regarding the terms of
the proposed Restructuring Transactions;
WHEREAS, the Debtors filed a Notice of
Selection of Plan Sponsor on August 9, 2021 [Docket No. 254], which
included as Exhibit A an Investment Term Sheet between AeroCentury
and Plan Sponsor dated as of August 9, 2021 (the “Term
Sheet”), setting forth the principal terms of an investment
by Plan Sponsor into AeroCentury to be implemented pursuant to the
Plan; and
WHEREAS, the Parties desire to express
to each other their mutual support and commitment in respect of the
matters discussed in the Term Sheet, this Agreement, and the
Plan.
AGREEMENT
NOW, THEREFORE, in consideration of the
covenants and agreements contained herein, and for other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each Party, intending to be legally bound hereby,
agrees as follows:
1. Exhibits
Incorporated by Reference. Each of the exhibits attached hereto
is expressly incorporated herein and made a part of this Agreement,
and all references to this Agreement shall include the exhibits
hereto. In the event of any inconsistency between this Agreement
and the exhibits attached hereto, this Agreement (without reference
to such exhibits) shall govern.
2. Definitive
Documents. The
definitive documents governing the Restructuring Transactions shall
consist of the following and any other material document
contemplated by the Parties needed or utilized to implement,
govern, or consummate the Restructuring Transactions (collectively,
the “Definitive Documents”):
(a) the
disclosure statement (and all exhibits and other documents and
instruments related thereto) with respect to the Plan (the
“Disclosure Statement”);
(b) the Securities
Purchase Agreement attached as Exhibit A hereto (as may
be further amended, supplemented, or otherwise modified in
accordance with its terms, the “SPA”) and all
schedules, annexes, and exhibits thereto, the Common Stock Purchase
Agreement attached as Exhibit B hereto (as may be further amended,
supplemented, or otherwise modified in accordance with its terms,
the “CSPA”) and all schedules, annexes, and exhibits
thereto, Series A Preferred Stock Purchase Agreement attached as
Exhibit C hereto (as may be further amended, supplemented, or
otherwise modified in accordance with its terms, the
“SAPSPA”) and all schedules, annexes, and exhibits
thereto, and Series B Preferred Stock Purchase Agreement attached
as Exhibit D hereto (as may be further amended, supplemented, or
otherwise modified in accordance with its terms, the
“SBPSPA”) and all schedules, annexes, and exhibits
thereto (collectively, the “Commitment
Documents”);
(c) the order approving
on an interim basis the Disclosure Statement, including the form of
ballots and other solicitation materials in respect of the Plan
(the “Solicitation Procedures Order” and, such
solicitation materials, the “Solicitation
Materials”);
(d) the Plan, Plan
Supplement, and all documents, annexes, schedules, exhibits,
amendments, modifications, or supplements thereto, or other
documents contained therein, including any schedules of assumed or
rejected contracts;
(e) the order
confirming the Plan (the “Confirmation Order”) and any
pleadings filed by the Debtors in support of the Bankruptcy
Court’s entry of the Confirmation Order;
(f) the new
organizational or other governance documents of the Reorganized
Debtors; and
(g) any employment
agreements relating to any executive officer of the Reorganized
Debtors.
The
Definitive Documents not executed or not in a form attached to this
Agreement as of the Effective Date remain subject to negotiation
and, upon completion, all Definitive Documents shall (a) reflect
and contain the terms and conditions consistent with this Agreement
and (b) otherwise be in form and substance acceptable to the
Debtors and the Plan Sponsor.
3. Milestones.
The following milestones (the “Milestones”) shall apply
to this Agreement, which in each case can be extended in writing by
the Parties (with confirmation of any extension by electronic mail
among counsel being sufficient for such purposes):
(a) by no later than
September 10, 2021, the Bankruptcy Court shall have entered the
Confirmation Order; and
(b) by
no later than September 30, 2021, the Effective Date of the Plan
shall have occurred (the “Effective Date
Deadline”).
4. Term
Sheet. The Term Sheet
is incorporated herein by reference and to the extent of any
obligations of the Parties set forth therein, such obligations
shall be binding obligations of the Parties subject to the terms
thereof.
5. Commitments
of the Parties.
(a) The
Debtors agree that they shall:
(A)(1)
support and work diligently towards the completion of the
Restructuring Transactions set forth in this Agreement, (2)
negotiate in good faith all Definitive Documentation that is
subject to negotiation as of the effective date of this Agreement
and take any and all reasonable actions in furtherance of the Plan
and this Agreement, (3) take all commercially reasonable actions
necessary to complete the Restructuring Transactions set forth in
the Plan, (4) make commercially reasonable efforts to obtain any
and all required regulatory and third-party approvals necessary to
consummate the Restructuring Transactions, if any, and (5) support
and take such actions as are necessary or appropriate or reasonably
requested by Plan Sponsor in furtherance of the Restructuring
Transactions in accordance with, and within the time frames
contemplated by, this Agreement; and (B) shall not undertake any
action materially inconsistent with the adoption and implementation
of the Plan and the confirmation thereof, including, without
limitation, filing any motion to reject this
Agreement.
afford
Plan Sponsor and its respective attorneys, consultants,
accountants, and other authorized representatives access, upon
reasonable notice during normal business hours, and at other
reasonable times, to the properties, books, contracts, commitments,
records, management personnel, and advisors of the Debtors that are
reasonably requested to consummate the Restructuring Transactions
(but in no event, shall the Debtors be required to provide access
to any materials that are protected by the attorney-client,
work-product or other protective privilege). In addition, the
Debtors shall promptly notify Plan Sponsor of any material
developments with respect to the Debtors’ business, the
Chapter 11 Cases, or otherwise.
as to
themselves and their subsidiaries, after the date of entry into
this Agreement and prior to the Plan Effective Date, and except as
required by applicable law:
(A) Provide the Plan
Sponsor with two (2) business days’ notice prior to entering
into any proposed new contracts and agreements involving individual
commitments of more than $25,000;
(B) Provide the Plan
Sponsor with two (2) business days’ notice prior to entering
into any agreement for the sale or encumbrance of any assets
between the date of this Agreement and the Plan Effective Date in
excess of $25,000 for any single transaction or $50,000 for any
series of related transactions (it being understood that the Plan
Sponsor has already been provided notice of and information
regarding the sales pending in and/or executed during the Chapter
11 Cases);
(C) Use commercially
reasonable efforts to maintain all of the assets and properties in
their current condition, ordinary wear and tear
excepted;
(D) Maintain insurance
upon all of the assets and properties of the Debtors in such
amounts and of such kinds comparable to that in effect on the date
of this Agreement;
(E) (1) Use
commercially reasonable efforts to maintain the books, accounts and
records of the Debtors in the ordinary course of business, (2)
continue to collect accounts receivable and pay accounts payable
utilizing reasonable procedures and without discounting or
accelerating payment of such accounts, and (3) use commercially
reasonable efforts to comply with all contractual and other
obligations applicable to the operation of the
Debtors;
(F) Comply in all
material respects with applicable laws;
(G) The Debtors shall
only submit tax returns and otherwise conduct their affairs with
respect to tax matters in consultation with the Plan Sponsor; and
the Debtors shall not (without Plan Sponsor’s prior written
consent) make or rescind any election relating to taxes, settle or
compromise any claim, action, suit, litigation, proceeding,
arbitration, investigation, audit, or controversy relating to
taxes, or, except as may be required by applicable law or GAAP,
make any material change to any of the Debtors’ methods of
accounting or methods of reporting income or deductions for tax or
accounting practice or policy from those employed in the
preparation of its most recent tax returns;
(H) The Debtors shall
not, without the prior written consent of Plan Sponsor, (1)
materially increase the annual level of compensation of any
employee of the Debtors, (2) increase the annual level of
compensation payable or to become payable by the Debtors to any of
the Debtors’ executive officers, (3) grant any unusual or
extraordinary bonus, benefit, or other direct or indirect
compensation to any employee, director, or consultant, (4)
materially increase the coverage or benefits available under any
(or create any new) severance pay, termination pay, vacation pay,
company awards, salary continuation for disability, sick leave,
deferred compensation, bonus, or other incentive compensation,
insurance, pension, or other employee benefit plan or arrangement
made to, for, or with any of the directors, officers, employees,
agents, or representatives of the Debtors or otherwise modify or
amend or terminate any such plan or arrangement or (v) enter into
any employment, deferred compensation, severance, consulting,
non-competition, or similar agreement (or amend any such agreement)
to which the Debtors are a party or involving a director, officer,
or employee of the Debtors in his or her capacity as a director,
officer or employee of the Debtors, provided, however, for the sake
of clarity nothing in this Agreement shall restrict the
Debtors’ ability to honor its existing employment practices
and policies, including, but not limited to, payment of ordinary
course salary and benefits, and, upon termination of employment,
severance and other end-of-employment benefits, all of which have
been disclosed to the Plan Sponsor; and
(I) The Debtors shall
not cancel or compromise any debt or claim or waive or release any
material right of the Debtors except in the ordinary course of
business. For the avoidance of doubt, the foregoing shall not limit
the Debtors’ ability to resolve, fix, settle, compromise,
object to, or allow any claim in the Chapter 11 Cases with the
approval of the Bankruptcy Court or in accordance with the
Plan.
(b) The Plan Sponsor
agrees that they shall:
(i) (A)(1)
support and work diligently towards the completion of the
Restructuring Transactions set forth in this Agreement, (2)
negotiate in good faith all Definitive Documentation that is
subject to negotiation as of the effective date of this Agreement
and take any and all reasonable actions in furtherance of the Plan
and this Agreement, (3) take all commercially reasonable actions
necessary to complete the Restructuring Transactions set forth in
the Plan, (4) make commercially reasonable efforts to obtain any
and all required regulatory and third-party approvals necessary to
consummate the Restructuring Transactions, if any, and (5) support
and take such actions as are necessary or appropriate or reasonably
requested by the Debtors in furtherance of the Restructuring
Transactions in accordance with, and within the time frames
contemplated by, this Agreement; and (B) shall not undertake any
action materially inconsistent with the adoption and implementation
of the Plan and the confirmation thereof, including, without
limitation, filing any motion to reject this
Agreement.
(ii) provide
the Debtors with information satisfactory to the Debtors, in their
reasonable discretion, that the Plan Sponsor shall have adequate
financial means to consummate the Restructuring Transactions,
including, but not limited to, providing proof of funds to
consummate the Restructuring Transactions.
6. Mutual
Representations and Warranties. Each Party, severally and not jointly,
represents and warrants to the other Parties that the following
statements are true and correct as of the Effective Date, subject
in the case of the Debtors to any required approval by the
Bankruptcy Court:
(a) Existence; Power and Authority; and
Authorization. If such Party is an entity, (i) such Party is
validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power
and authority to enter into this Agreement and perform such
Party’s obligations under this Agreement and (ii) the
execution and delivery of this Agreement and the performance of
such Party’s obligations under this Agreement have been duly
authorized by all necessary corporate action on such Party’s
part;
(b) No Conflict. The execution, delivery,
and performance by such Party of this Agreement does not and will
not (i) violate any provision of law, rule, or regulation
applicable to it or, if such Party is an entity, any of its
subsidiaries or its charter or bylaws (or other similar governing
documents) or those of any of its subsidiaries or (ii) conflict
with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any material contractual
obligation to which it or, if such Party is an entity, any of its
subsidiaries is a party;
(c) No Consent or Approval. The execution,
delivery, and performance by such Party of this Agreement does not
and will not require any registration or filing with, consent or
approval of, or notice to, or other action, with or by, any
federal, state, or other governmental authority or regulatory body,
except such filings (i) as may be necessary or required by the U.S.
Securities and Exchange Commission or (ii) with respect to the Plan
Sponsor, that are set forth in SPA; and
(d) Enforceability. This Agreement is the
legally valid and binding obligation of such Party, enforceable
against it in accordance with its terms, except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium,
or other similar laws relating to or limiting creditors’
rights generally or by equitable principles relating to
enforceability or a ruling of the Bankruptcy Court.
7. Termination
Events.
(a) This
Agreement shall automatically terminate three (3) business days
after delivery of written notice to the other Party (in accordance
with Section 21) from (i) the Debtors at any time after the
occurrence and during the continuance of any Debtors Termination
Event or (ii) Plan Sponsor at any time after the occurrence and
during the continuance of any Plan Sponsor Termination Event. In
addition, this Agreement shall terminate automatically on the Plan
Effective Date without any further required action or
notice.
(i) “Plan
Sponsor Termination Event” shall mean any of the
following:
(A) the breach in any
material respect by the Debtors of any of the undertakings,
representations, warranties, or covenants of the Debtors set forth
herein that would prevent and result in a material adverse effect
on the consummation of the Plan in accordance with this Agreement
that remains uncured for a period of five (5) business days after
the receipt of written notice of such breach to the
Debtors;
(B) the Debtors file
Definitive Documentation in a form not reasonably acceptable to
Plan Sponsor, or make any amendments, modifications, exhibits, or
supplements thereto, in a manner that adversely affects Plan
Sponsor without the consent of Plan Sponsor or except as otherwise
permitted by this Agreement;
(C) the Debtors
withdraw the Plan or publicly announce the Debtors’ intention
to not support the Plan, or propound, or otherwise support any
chapter 11 plan other than the Plan;
(D) the Confirmation
Order is not entered in form and substance reasonably satisfactory
to Plan Sponsor, it being understood and agreed that Plan Sponsor
will act reasonably and commercially in considering any
modifications to the Confirmation Order requested or required by
the Bankruptcy Court and other parties in interest;
(E) the Debtors seek,
pursue, support, or do not oppose an order to be entered by the
Bankruptcy Court or a court of competent jurisdiction either
converting the Chapter 11 Cases to a case under chapter 7 of the
Bankruptcy Code or dismissing the Chapter 11 Cases;
(F) the Debtors seek,
pursue, support, or do not oppose an order of the Bankruptcy Court
seeking appointment, in respect of the Debtors, a trustee, a
responsible officer, or an examiner with enlarged powers
(i.e., powers beyond those
set forth in subclauses (3) and (4) of section 1106(a)) under
section 1106(b) of the Bankruptcy Code);
(G) this Agreement is
waived, modified, amended, or supplemented in any way, except by
mutual agreement of, and in a writing signed by, the Debtors and
the Plan Sponsor; or
(H) the Bankruptcy
Court grants relief that is inconsistent with this Agreement or the
Plan in any material respect, except if such relief is granted
pursuant to a motion by the Plan Sponsor (or with the consent of
the Plan Sponsor); provided, however, that the failure to obtain
confirmation of the Plan and/or the occurrence of the Effective
Date shall not constitute a Plan Sponsor Termination Event pursuant
to this Section 7(a)(viii) unless such failure is the result of any
Plan Sponsor Termination Event identified in Section
7(a)(i)-(vii).
(ii) “Debtors
Termination Event” shall mean any of the
following:
(A) the breach in any
material respect by Plan Sponsor of any of the undertakings,
representations, warranties, or covenants of Plan Sponsor set forth
herein that would result in a material adverse effect on the
consummation of a Plan in accordance with this Agreement that
remains uncured for a period of five (5) business days after the
receipt of written notice of such breach;
(B) the Plan Sponsor
shall have failed to provide the Debtors with information required
by Section 5(b)(ii);
(C) the Plan Sponsor
makes any amendments, modifications, exhibits, or supplements to
the Definitive Documentation, in a manner that adversely affects
the Debtors without the consent of the Debtors or except as
otherwise permitted by this Agreement;
(D) the Plan Sponsor
advises the Debtors or publicly announces its intention to not
support the Plan;
(E) this Agreement is
waived, modified, amended, or supplemented in any way, except by
mutual agreement of, and in a writing signed by, the Debtors and
the Plan Sponsor;
(F) the Bankruptcy
Court denies confirmation of the Plan; or
(G) any governmental
authority or regulatory body having authority blocks the purchase
of the New ACY Shares or does not otherwise grant any approval
required in connection with the purchase of the New ACY
Shares.
(b) Mutual Termination. This Agreement may
be terminated by mutual agreement of the Parties.
(c) Effect of Termination. Subject to the
last sentence of this Section 7(c) and Section 9, upon the
termination of this Agreement in accordance with this Section, this
Agreement shall become void and of no further force or effect and
each Party shall be immediately released from its respective
liabilities, obligations, commitments, undertakings, and agreements
under or related to this Agreement, shall have no further rights,
benefits, or privileges hereunder, and shall have all the rights
and remedies that it would have had and shall be entitled to take
all actions, whether with respect to the Restructuring Transactions
or otherwise, that it would have been entitled to take had it not
entered into this Agreement and no such rights or remedies shall be
deemed waived pursuant to a claim of laches or estoppel; provided
that in no event shall any such termination relieve a Party from
liability for its breach or non-performance of its obligations
hereunder before the date of such termination. Except as set forth
herein, if the transactions contemplated hereby are not
consummated, or if this Agreement is terminated for any reason, the
Parties fully reserve any and all of their rights. In the event
this Agreement as a result of any Debtors Termination Event
specified in Section 7(a)(ii)(A), (B), (C), or (D), the Deposit
shall be retained by the Debtors as liquidated damages and
irrevocably forfeited by the Plan Sponsor. In the event of a
termination pursuant to any other subpart of Section 7, the Deposit
shall be returned to the Plan Sponsor.
(d) Automatic Stay. The Debtors acknowledge
that the giving of notice of termination by any Party pursuant to
this Agreement shall not be a violation of the automatic stay of
section 362 of the Bankruptcy Code; provided that nothing herein
shall prejudice any Party’s rights to argue that the giving
of notice of termination was not proper under the terms of this
Agreement.
8. Amendments
and Waivers. Except
as otherwise expressly set forth herein, this Agreement may not be
waived, modified, amended, or supplemented except in a writing
signed by each Party.
9. Break-Up
Fee. If after the
Effective Date the Bankruptcy Court approves an exit financing
transaction for AeroCentury with a party other than the Plan
Sponsor (an “Alternative Transaction”) then AeroCentury
shall pay Plan Sponsor, upon the closing of such Alternative
Transaction, in addition to the return of the Deposit, a breakup
fee equal to USD$1,000,000.
10. Effectiveness.
Subject to approval by the Bankruptcy Court, this Agreement shall
become effective and binding upon each Party upon the execution and
delivery by such Party of an executed signature page
hereto.
11. Governing
Law; Jurisdiction; Wavier of Jury Trial.
(a) This Agreement
shall be construed and enforced in accordance with, and the rights
of the Parties shall be governed by, the laws of the State of
Delaware, without giving effect to the conflict of laws principles
thereof. The Parties irrevocably agree that any legal action, suit,
or proceeding (each, a “Proceeding”) arising out of or
relating to this Agreement brought by any Party or its successors
or assigns shall be brought and determined in the Bankruptcy Court
or, if the Bankruptcy Court shall not then have jurisdiction, in
any federal or state court in New Castle County, Delaware (the
“Delaware Courts”), and the Parties hereby irrevocably
and generally submit to the exclusive jurisdiction of the Delaware
Courts and any court to which appeals from the Delaware Courts may
be adjudicated for themselves and with respect to their property,
and unconditionally with respect to any Proceeding arising out of
or relating to this Agreement and the Restructuring. The Parties
agree not to commence any Proceeding relating hereto or thereto
except in the Delaware Courts, other than Proceedings in any court
of competent jurisdiction to enforce any judgment, decree, or award
rendered by any Delaware Court. The Parties further agree that
notice as provided herein shall constitute sufficient service of
process and the Parties further waive any argument that such
service is insufficient. The Parties hereby irrevocably and
unconditionally waive and agree not to assert that a Proceeding in
any Delaware Court is brought in an inconvenient forum or the venue
of such Proceeding is improper. Notwithstanding the foregoing,
during the pendency of the Chapter 11 Case, all Proceedings
contemplated by this Section 11 shall exclusively be brought in the
Bankruptcy Court and no other forum.
(b) The Parties hereby
waive, to the fullest extent permitted by applicable law, any right
they may have to a trial by jury in any Proceeding directly or
indirectly arising out of or relating to this Agreement or the
transactions contemplated hereby (whether based on contract, tort
or any other theory).
12. Good Faith
Cooperation; Further Assurances. Each Party hereby covenants and agrees
to cooperate with each other in good faith in connection with, and
shall exercise commercially reasonable efforts with respect to, the
pursuit, approval, implementation, and consummation of the
Restructuring Transactions, as well as the negotiation, drafting,
execution, and delivery of the Definitive Documentation. Subject to
the terms hereof, the Parties shall take such action as may be
reasonably necessary or reasonably requested by any Party to carry
out the purposes and intent of this Agreement, and shall refrain
from taking any action that would frustrate the purposes and intent
of this Agreement.
13. Independent
Analysis. Each Party
hereby confirms that its decision to execute this Agreement has
been based upon its independent assessment of documents and
information available to it, as it has deemed
appropriate.
14. Debtors’
Fiduciary Obligations. Notwithstanding anything to the
contrary in this Agreement, nothing in this Agreement, the Plan, or
anything included in any Definitive Document shall require any
Debtor or any board of directors, board of managers, or similar
governing body of any Debtor, after consulting with counsel, to
take any action or to refrain from taking any action with respect
to this Agreement, the Plan, or the Restructuring Transactions to
the extent taking or failing to take such action would be
inconsistent with applicable law or its fiduciary obligations under
applicable law, and any such action or inaction pursuant to such
exercise of fiduciary duties shall not be deemed to constitute a
breach of this Agreement; provided that the Debtors shall
give prompt written notice to counsel to the Plan Sponsor
(electronic mail among counsel being sufficient) of any
determination made under this Section.
15. Survival.
Notwithstanding the termination of this Agreement pursuant to
Section 7, [Section[s] *] shall survive such termination and shall
continue in full force and effect in accordance with the terms
hereof; provided that any liability of a Party for failure to
comply with the terms of this Agreement shall survive such
termination.
16. Headings.
The headings of the sections, paragraphs, and subsections of this
Agreement are inserted for convenience only and shall not affect
the interpretation hereof or, for any purpose, be deemed a part of
this Agreement.
17. Successors
and Assigns; Severability. This Agreement is intended to bind and
inure to the benefit of the Parties and their respective
successors, permitted assigns, heirs, executors, administrators,
and representatives. If any provision of this Agreement, or the
application of any such provision to any person or entity or
circumstance, shall be held invalid or unenforceable, in whole or
in part, such invalidity or unenforceability shall attach only to
such provision or part thereof and the remaining part of such
provision hereof and this Agreement shall continue in full force
and effect. Upon any such determination of invalidity, the Parties
shall negotiate in good faith to modify this Agreement so as to
effectuate the original intent of the Parties as closely as
possible in a reasonably acceptable manner so that the transactions
contemplated hereby are consummated as originally contemplated to
the greatest extent possible. No assignment of this Agreement or of
any rights or obligations hereunder may be made by any Party (by
operation of law or otherwise) without the prior written consent of
the other parties hereto and any attempted assignment without the
required consents shall be void.
18. Relationship
Among Parties. Unless
expressly stated herein, this Agreement shall be solely for the
benefit of the Parties and no other person or entity shall be a
third-party beneficiary hereof. No Party shall have any
responsibility for the transfer, sale, purchase, or other
disposition of securities by any other entity by virtue of this
Agreement. No prior history, pattern, or practice of sharing
confidences among the Parties shall in any way affect or negate
this understanding and agreement. The Parties have no agreement,
arrangement, or understanding with respect to acting together for
the purpose of acquiring, holding, voting, or disposing of any
securities of the Company and do not constitute a
“group” within the meaning of Rule 13d-5 under the
Securities Exchange Act of 1934, as amended.
19. Prior
Negotiations; Entire Agreement. This Agreement, including the exhibits
and schedules hereto (including the Term Sheet), constitutes the
entire agreement of the Parties, and supersedes all other prior
negotiations regarding the subject matters hereof and
thereof.
20. Counterparts.
This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, and all of which together
shall be deemed to be one and the same agreement. Execution copies
of this Agreement delivered by facsimile or PDF shall be deemed to
be an original for the purposes of this paragraph.
21. Notices.
All notices hereunder shall be deemed given if in writing and
delivered, if contemporaneously sent by electronic mail, facsimile,
courier, or by registered or certified mail (return receipt
requested) to the following addresses and facsimile numbers or such
other addresses of which notice is given pursuant
hereto:
(a)
if to the Plan
Sponsor to be delivered in care of the Investor Representative (as
defined in the SPA) to:
Xxxxxxx
Xx
Xxxxx 0
Xxxxx XX, Xxxxxxxx Xxxxxxx
International
Xxxxxxxx Xxxxxxxx
Xxxxxxx,
Xxxxx
Email:
xxxxxxxxx@xx.xxx
or at
such other address as the Investor Representative shall have
furnished to the Debtors with a copy to (which copy shall not
constitute notice):
Xxxxx
Xxxxxxxx Xxxxxxxx & Xxxxx LLP
0000
Xxxx Xx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX
00000
Attn:
Xxxx X. Xxxx
Facsimile:
916.564.5444
Email:
Xxxx.xxxx@xxxxxxxxxxxxx.xxx
(c)
if to the Debtors,
to:
AeroCentury Corp.,
et al.
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxxx
X. Xxxxx
Email:
xxx.xxxxx@xxxxxxxxxxx.xxx
or at
such other address as the Debtors shall have furnished to the
Investor Representative (as defined in the SPA) with a copy to
(which copy shall not constitute notice):
Young
Xxxxxxx Stargatt & Xxxxxx, LLP
Xxxxxx
Square
0000 X.
Xxxx Xxxxxx
Xxxxxxxxxx, XX
00000
Attention: Xxxxxx
Xxxxx, Xxxxx X. Xxxxx, and Xxxxxx Xxxxxxxxx
Facsimile:
(000)000-0000
Email:
xxxxxx@xxxx.xxx
xxxxxx@xxxx.xxx
xxxxxxxxxx@xxxx.xxx
22. No Solicitation;
Adequate Information.
This Agreement is not and shall not be deemed to be a solicitation
for consents to the Plan. The votes of the holders of claims
against the Company will not be solicited until such holders who
are entitled to vote on the Plan have received the Plan, Disclosure
Statement, related ballots, and other required Solicitation
Materials. In addition, this Agreement does not constitute an offer
to issue or sell securities to any person or entity, or the
solicitation of an offer to acquire or buy securities, in any
jurisdiction where such offer or solicitation would be
unlawful.
23. Business
Day Convention. Any
reference to “business day” means any day, other than a
Saturday, Sunday or a legal holiday (as that term is defined in
Bankruptcy Rule 9006(a)).
24. Interpretation;
Rules of Construction; Representation by Counsel. When a reference is made in this
Agreement to a Section, Exhibit, or Schedule, such reference shall
be to a Section, Exhibit, or Schedule, respectively, of or attached
to this Agreement unless otherwise indicated. Unless the context of
this Agreement otherwise requires, (a) words using the singular or
plural number also include the plural or singular number,
respectively, (b) the terms “hereof,”
“herein,” “hereby” and derivative or
similar words refer to this entire Agreement, (c) the words
“include,” “includes” and
“including” when used herein shall be deemed in each
case to be followed by the words “without limitation,”
and (d) the word “or” shall not be exclusive and shall
be read to mean “and/or.” The Parties agree that they
have been represented by legal counsel during the negotiation and
execution of this Agreement and, therefore, waive the application
of any law, regulation, holding, or rule of construction providing
that ambiguities in an agreement or other document shall be
construed against the party drafting such agreement or
document.
[Remainder of Page Intentionally Left Blank]
28491052.1
IN WITNESS WHEREOF, the Parties have
caused this Agreement to be executed and delivered by their
respective duly authorized officers, solely in their respective
capacity as officers of the undersigned and not in any other
capacity, as of the date first set forth above.
DEBTORS
By:
Name:
Title:
JetFleet
Holding Corp.
By:
Name:
Title:
JetFleet
Management Corp.
By:
Name:
Title:
PLAN
SPONSORS
By:
Xxxxxxx
Xx
By:
Xxx
Xxxx
By:
Xxxx
Xx
By:
Yeh
Ching
By:
Xx
Xxxx
By:
TongTong
Ma
By:
Xxxxx
Xxxxx
By:
Xxxxxx
Xx
By:
Xxxx
Xxxxx
[SIGNATURE
PAGE TO PLAN SPONSOR AGREEMENT]
