EX-10.1
2
dash8purchaseagreement.htm
DASH 8 PURCHASE AGREEMENT
EXHIBIT 10.1
_________________________________________________________________
AIRCRAFT
PURCHASE AGREEMENT C-GVTA
Dated
as
of December 22, 2006
Between
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
Not
in
its individual capacity but solely as Owner Trustee
(“Seller”)
And
COMPASS
CAPITAL CORPORATION
(“Buyer”)
One
1989
DeHavilland DHC-8-301 with m/s/n 190 bearing registration marks C-GVTA and
Two
Xxxxx & Whitney Model 100-123 engines m/s/n PCE 123063 and PCE
123064
_________________________________________________________________
1
AIRCRAFT
PURCHASE AGREEMENT
C-GVTA
This
AIRCRAFT PURCHASE AGREEMENT C-GVTA, dated as of December 22, 2006 (this
“Agreement”) is entered into by and between Xxxxx Fargo Bank Northwest, National
Association (as successor to First Security Bank, National Association), not
in
its individual capacity but solely as Owner Trustee (“Seller,” “Lessor” or the
“Owner Trustee”) on behalf of Owner Participant (as defined below) and Compass
Capital Corporation, a California corporation (“Buyer”).
RECITALS
A. Seller
is
the owner of the Aircraft, acting as Owner Trustee on behalf of Owner
Participant under the Trust Agreement (such term and other capitalized terms
used without definition having the meanings given to them in Section 1
below).
B. The
Aircraft is presently leased to the Lessee under the Lease.
C. Buyer
wishes to purchase the Aircraft from Seller and to assume Seller’s rights and
obligations under the Lease, and Seller wishes to sell the Aircraft to Buyer
and
to assign to Buyer Seller’s rights and obligations under the Lease, all on the
terms and conditions hereinafter set forth.
AGREEMENT
NOW
THEREFORE, in consideration of the promises and the mutual covenants hereinafter
contained the parties hereby agree as follows:
1. Definitions. For
all
purposes of this Agreement, unless the context requires otherwise, in addition
to those terms defined elsewhere in this Agreement, each of the following terms
shall have the meanings indicated below and, in each case, defined terms may
be
used in either the singular or the plural, as circumstances may
warrant:
“Affiliate”
shall
mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person, including,
without limitation, any limited partnership, limited liability company or
grantor trust of which such Person or any Affiliate of such Person is the
trustee or sole grantor sole or co-general partner or managing agent and any
members of any limited liability company and any Affiliate of such Person,
such
limited partnership, limited liability company or grantor trust.
“Aircraft”
shall
mean, collectively, the Airframe and the Engines and including therewith all
parts, components, instruments, appurtenances, accessories, furnishings and
other equipment of whatever nature which are incorporated or installed in or
attached thereon and all Records pertaining thereto.
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“Airframe”
shall
mean the DeHavilland DHC-8-301 with m/s/n 190 built in 1989 and bearing Canadian
registration xxxx C-GVTA.
“Assignment
Agreement”
shall
mean the Agreement for Assignment and Assumption of Lease substantially in
the
form attached hereto as Exhibit A.
“Aviation
Authority”
shall
mean the Canadian Minister of Transport.
“Aviation
Counsel”
shall
mean Xxxxx & Xxxxxxx, Oklahoma City, Oklahoma.
“Buyer
Indemnitees”
shall
mean Buyer and its respective Affiliates and their officers, directors,
shareholders, agents and employees.
“Casualty
Occurrence”
shall
mean any of the following events with respect to the Aircraft: (i) the total
loss of such Aircraft or the use thereof due to theft, disappearance,
destruction, damage beyond economic repair or rendition of such Aircraft
permanently unfit for use for any reason whatsoever, (ii) any damage to the
Airframe or an Engine which results in an insurance settlement with respect
to
such property on the basis of a total loss, or (iii) the condemnation,
confiscation, appropriation or seizure of, or requisition of title to such
property or the use of such property by or on the authority of any governmental
authority or purported governmental authority.
“Chief
Dispatcher’s Certificate”
shall
mean the Certificate of the Chief Dispatcher of the Lessee to be delivered
by
the Lessee on the Closing Date specifying the date, time and location of the
Aircraft over international waters.
“Closing”
shall
mean the consummation of the sale of the Aircraft and the assignment of the
Lease pursuant to this Agreement.
“Closing
Date”
shall
mean the date specified in the Chief Dispatcher’s Certificate or another date
mutually agreed upon by Buyer and Seller.
“Delivery
Location”
shall
mean in a location in international airspace as specified in the Chief
Dispatcher’s Certificate
“Delivery
Receipt”
shall
mean a Delivery Receipt substantially in the form of Exhibit B
hereto.
“Effective
Time”
shall
mean the time of the arrival of the Aircraft at the Delivery Location, as
specified in the Chief Dispatcher’s Certificate.
“Engines”
shall
mean the two (2) Xxxxx & Xxxxxxx Model 100-123 engines m/s/n PCE 123063 and
PCE 123064 (each of which engines has 550 or more rated shaft takeoff horsepower
or the equivalent of such horsepower).
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“Event
of Default”
shall
have the meaning specified therefor in the Lease.
“Event
of Loss”
shall
have the meaning specified therefor in the Lease.
“International
Registry”
shall
mean the International Registry of Mobile Assets.
“Irrevocable
Closing Agreement (S/N 190)”
shall
mean the Irrevocable Closing Agreement (S/N 190) substantially in the form
attached hereto as Exhibit D.
“Lease”
shall
mean the Aircraft Lease Agreement dated as of June 26, 1996 between PLM
Worldwide Leasing Corp. (“Worldwide”) as Lessor and Lessee (as successor to Time
Air Inc.) as Lessee, as assigned by Worldwide to PLM Transportation Equipment
Corporation (“TEC”) on June 26, 1996 and re-assigned by TEC to Worldwide on
September 26, 1996 and as assigned by Worldwide to Lessor by the Assignment
of
Lease Agreement dated as of September 26, 1996, as amended by the Aircraft
Lease
Amendment dated as of September 26, 1996 between Worldwide, TEC, Lessor and
Time
Air Inc., as further amended by the Amended and Restated Payment Deferral
Agreement dated as of May 6, 1997, between Time Air Inc., Worldwide, TEC and
the
Owner Trustee, as further amended by the letter agreement dated as of November
11, 2003 between Jazz Air Inc. (as successor to Time Air Inc. and a predecessor
to the Lessee) and the Owner Trustee, as further amended by the letter agreement
dated as of November 1, 2004 between the Owner Trustee and the Lessee, as
assigned by Jazz Air Limited Partnership to Jazz Air LP by Notice of Assignment
to the Owner Trustee dated March 2, 2006 and as further amended by the letter
agreement dated as of November 1, 2006 between the Owner Trustee and the Lessee,
together with all exhibits, schedules, riders, and attachments related
thereto.
“Lender”
shall
mean Xxxxx Fargo Equipment Finance, Inc., a Delaware corporation.
“Lessee”
shall
mean Jazz Air Limited Partnership, as successor to Jazz Air Inc., as successor
to Time Air Inc.
“Lien”
shall
mean any mortgage, pledge, lien, encumbrance, lease, and security interest
or
claim against title to or right of possession.
“Novation
Agreement”
shall
mean an Aircraft Lease Novation and Amendment Agreement 190 by and among Seller,
Buyer and Lessee, in mutually agreeable form and dated as of the Closing
Date.
“Owner
Participant”
shall
mean PLM Equipment Growth Fund V Liquidating Trust, a liquidating trust formed
under the laws of the State of Delaware, as successor to PLM Equipment Growth
Fund V.
“Permitted
Liens”
shall
mean (i) the Lease, including the interest of the Lessee arising under the
Lease
and (ii) such encumbrances as may be permitted under clauses (a), (d) and (e)
of
the definition of “Permitted Lien” as defined in the Lease.
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“Person”
shall
mean and include any individual person, corporation, partnership, limited
liability company, limited partnership, limited liability partnership, firm,
joint stock company, joint venture, trust, estate, unincorporated organization,
association or governmental entity.
“Purchase
Price”
shall
have the meaning specified in Section 2(b) hereof.
“Records”
shall
mean all records associated with the Aircraft on the Closing Date, including,
without limitation, the flight, engineering, and maintenance manuals, drawings,
documents, equipment lists, operational records, maintenance records and other
data pertaining to the Aircraft.
“Rent”
shall
have the meaning specified therefor in the Lease.
“Seller
Indemnitee”
shall
mean Seller and Owner Participant and their respective Affiliates and their
respective officers, directors, shareholders, agents and employees.
“Taxes”
shall
mean all taxes, fees, levies, imposts, duties, assessments, value-added taxes,
withholdings, deductions and other charges of any nature whatsoever, or any
amount payable on account of or as security for any of the foregoing (but not
including taxes imposed on or payable with respect to the income of Seller
or
Owner Participant), payable as a result of the consummation of the transactions
contemplated by this Agreement at the instance of or imposed as a result by
any
statutory, governmental, international, state, federal, local or municipal
authority, agency, body or department whatsoever, together with any and all
fines, penalties, additions to tax and/or interest computed by reference
thereto.
“Trust
Agreement”
shall
mean Trust Agreement dated as of October 16, 1989 between Xxxxx Fargo Bank
Northwest, National Association (as successor to First Security Bank, National
Association) as Owner Trustee and Owner Participant (as successor to PLM
Equipment Growth Fund V as successor to PLM Transportation Equipment
Corporation) as Owner Participant, as amended by the First Amendment to Trust
Agreement dated May 11, 1990, the Trust Agreement Amendment dated May 8, 1995,
the Amendment to Trust Agreement dated as of August 29, 2003 and
the
Acknowledgement and Consent Agreement (C-GVTA) dated as of June 30, 2006 by
and
among the Owner Trustee, PLM Equipment Growth Fund V, the Owner Participant,
and
PLM Financial Services, Inc. individually and as Trustee of the PLM Equipment
Growth Fund V Liquidating Trust.
“Warranty
Xxxx of Sale”
shall
mean a Warranty Xxxx of Sale with respect to the Aircraft substantially
in the form of Exhibit C hereto.
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2. Sale
of the Aircraft; Purchase Price; Assignment and Assumption;
Closing.
(a) Subject
to the terms and conditions specified in this Agreement, on the Closing Date
and
at the Effective Time, (i) Buyer hereby agrees to purchase from Seller, and
Seller hereby agrees to sell to Buyer, the Aircraft and all Records with respect
thereto and (ii) Seller agrees to assign to Buyer, and Buyer agrees to assume
from Seller, Seller’s rights and obligations under the Lease. Seller and Buyer
acknowledge and agree that Lessee has required that the Aircraft arrive at
the
Delivery Location on December 22, 2006 or December 23, 2006 at a time specified
by Lessee and that at such time contemporaneous payment of the Purchase Price
will be impossible Accordingly, Buyer and Seller hereby that upon satisfaction
or waiver of all conditions precedent to the Closing (other than arrival of
the
Aircraft at the Delivery Location and payment of the Purchase Price), all
documents to be delivered at the Closing shall be deemed delivered and shall
be
released as of the Effective Time and the Closing shall be deemed to have
occurred as of the Effective Time, subject only to the Irrevocable Closing
Agreement (S/N 190) becoming effective upon such Closing and the condition
subsequent of payment of the Purchase Price by Lender pursuant to the
Irrevocable Closing Agreement (S/N 190).
(b) Buyer
shall purchase the Aircraft “as is, where is,” at the Delivery Location and at
the Effective Time. The purchase price due to Seller (the “Purchase Price”)
shall be $2,655,993.15, calculated as follows: (i) $2,645,000 plus
(ii) an
additional amount calculated by multiplying $2,675,000 times the daily
equivalent of 6.0% per annum, compounded annually (such daily equivalent being
$439.73 per day), for the period from and including November 27, 2006 to but
not
including the Closing Date minus
(iii)
the amount of any payment of Rent paid by the Lessee under the Lease after
November 27, 2006 and received by the Seller on or prior to the Closing Date.
Buyer shall be entitled to receive all Rent payable by the Lessee after the
Closing Date, and Buyer and Seller agree to remit immediately upon receipt
to
the other, without interest, any payments received from Lessee under the Lease
which belong the other party under the terms of this Agreement. Seller agrees
to
accept the Irrevocable Closing Agreement (S/N 190) in satisfaction of Buyer’s
obligation to pay the Purchase Price hereunder.
(c)
On
or
before the Closing Date, Seller shall execute and deliver to its counsel an
original Warranty Xxxx of Sale for the Aircraft to be delivered to Buyer, Buyer
and Seller shall execute and deliver to its respective counsel four signed
originals of the Assignment Agreement to be delivered to the other party
thereto, and Buyer and Seller and Lessee shall execute and deliver to their
respective counsel four signed originals of the Novation Agreement for delivery
to the other parties thereto, all undated. All documents so executed and
delivered to counsel shall be held in escrow by counsel until released in
accordance with Section 2(e) below.
(d) On
the
Closing Date and at a mutually agreeable time, each of Buyer, Seller, Lessee
and
Owner Participant (directly or through counsel) shall acknowledge and agree
that
the conditions precedent to Closing have been satisfied but for the arrival
of
the Aircraft at the Delivery Location and the condition subsequent specified
in
2(a) above will take the following actions:
(i)
Seller will deliver the Xxxx of Sale and the Assignment Agreement to Buyer
to be
dated, released and become effective as of the Effective Time; (ii) Buyer will
deliver the Assignment Agreement and the Irrevocable Closing Agreement (S/N
190)
to Seller to be dated, released and become effective upon the Effective Time,
(iii) Buyer and Seller will deliver the Novation Agreement to each other and
to
Lessee to be dated, released and become effective upon the Effective Time;
(iv)
Buyer and Seller will authorize registration of the sale (or confirmation of
prospective interests previously filed) with the International Registry as
soon
as practicable after the Effective Time.
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All
such
documents shall be released and shall become effective at the Effective Time.
As
soon as practicable thereafter, Buyer and Seller shall complete a Delivery
Receipt with respect to the Aircraft, which shall conclusively evidence the
acceptance of the Aircraft by Buyer on the date thereof for all purposes of
this
Agreement.
(e) Title
and
risk of loss to the Aircraft shall pass to Buyer at the Effective Time, subject
to the terms and conditions of Section 2(a) above.
3. Conditions
to Buyer’s Purchase Obligation.
Buyer’s
obligation to purchase the Aircraft from Seller is subject to the following
conditions precedent:
(a) All
representations and warranties of Seller contained in Section 5 hereof and
by Owner Participant in Attachment A hereto shall be true and correct as of
the
Closing Date with the same force and effect as though made on and as of the
Closing Date, and no Casualty Occurrence shall have occurred on or before the
Closing Date.
(b) Buyer
shall have received confirmation from counsel to Seller that it holds all
documentation to be delivered by Seller under Section 2 hereof and from counsel
to Lessee that it holds the documentation to be delivered by Lessee under
Section 2 hereof.
(c) Buyer
shall have received confirmation from Aviation Counsel that upon registration
of
the interests with the International Registry referred to in paragraph (b)
above, Aviation Counsel shall issue an opinion of Aviation Counsel to Buyer
(and
any assignee of Buyer) to the effect that the interests of Buyer as owner of
the
Aircraft and assignee of the Lease have been duly registered with the
International Registry and at the time of such registration there were no Liens
of record against the Aircraft filed with the International
Registry.
(d) Buyer
shall have received satisfactory assurances of the enforceability of the Lease
under the laws of Canada and its applicable provinces.
(e)
Buyer
shall have received a certificate of insurance from Lessee revised to reflect
the interests of Buyer and Lender in the Aircraft and otherwise complying with
the requirements of the Lease.
4. Conditions
to Seller’s Sale Obligation.
Seller’s obligation to sell the Aircraft to Buyer is subject to the following
conditions precedent:
(a)
All
representations and warranties of Buyer contained in Section 6 hereof shall
be true and correct as of the Closing Date with the same force and effect as
though made on and as of the Closing Date, and no Casualty Occurrence shall
have
occurred as to the Aircraft on or before the Closing Date.
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(b) Seller
shall have received confirmation from counsel to Buyer that it holds all
documentation to be delivered by Buyer under Section 2 hereof and from counsel
to Lessee that it holds the documentation to be delivered by Lessee under
Section 2 hereof.
(c) Seller
shall have received confirmation from Aviation Counsel that upon registration
of
the interests with the International Registry referred to in paragraph (b)
above, Aviation Counsel shall issue an opinion of Aviation Counsel to Seller
to
the effect that the interests of Buyer as owner of the Aircraft and assignee
of
the Lease have been duly registered with the International Registry and at
the
time of such registration there were no Liens of record against the Aircraft
filed with the International Registry.
(d) Seller
shall have received payment of the Purchase Price in accordance with the terms
hereof.
(e)
Seller
shall have received a certificate of insurance from Lessee satisfying the
requirements of Section 20 hereof.
5. Representations,
Warranties and Certain Disclaimers of Seller.
(a) Seller,
in its individual capacity with respect to clauses (i) and (iv) below only
and
otherwise solely as Owner Trustee for Owner Participant, represents, warrants
and covenants as follows:
(i) Seller
is
a national banking association duly organized and validly existing under the
laws of the United States of America and is the Owner Trustee under the Trust
Agreement.
(ii) Seller
has full power and lawful authority to transfer title to the Aircraft and to
assign the Lease to Buyer in accordance with this Agreement, the Warranty Xxxx
of Sale and the Assignment Agreement and has and will transfer to Buyer good
and
marketable title to the Aircraft free and clear of Liens or other defects in
title (other than Permitted Liens) and will assign the Lease to Buyer free
and
clear of Liens or other defects in title and will warrant and defend the same
to
Buyer.
(iii)
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby nor compliance by Seller with any of the terms
and provisions hereof will contravene any law, rule or regulation of the State
of Utah or any law, rule or regulation of the United States of America governing
Seller’s banking and trust powers or result in any breach of, or constitute any
default under, any material indenture, mortgage, chattel mortgage, deed of
trust, conditional sales contract, bank loan or credit agreement, corporate
charter, by-law or other agreement or instrument to which Seller is a party
or
by which Seller or its properties may be bound or affected.
8
(iv) This
Agreement and the consummation of the transactions contemplated hereby have
been
duly authorized, executed and delivered by Seller and constitute the valid,
enforceable and binding obligation of Seller (subject only to the effect of
bankruptcy or insolvency laws).
(v) No
suit
or action, investigation, inquiry or request for information by any governmental
authority or administrative agency against Seller, no suit or action by any
private party against Seller, and no legal or administrative proceeding has
been
instituted or threatened against Seller which seeks to delay or prevent the
transactions contemplated hereby or challenge the terms or provisions of this
Agreement.
(vi) Other
than the registration of the sale of title to the Aircraft and the assignment
of
the Lease with the International Registry, no consent, approval or authorization
of, or declaration, filing or registration with or notice to any person, entity
or governmental authority under the federal or state laws of any of the United
States governing the banking and trust powers of the Seller is required to
be
made or obtained by Seller in connection with the execution and delivery of
this
Agreement and the consummation of the transactions contemplated hereby by
Seller.
(vii) There
are
no agreements with the Lessee regarding the Aircraft or the Lease other than
the
Lease and the Novation Agreement, and no other amendments to the Lease have
been
executed or are under discussion with the Lessee.
(viii) To
Seller’s knowledge, neither an Event of Default nor an Event of Loss has
occurred under the Lease, Seller is not in default with respect to any of its
obligations under the Lease, and no prepayment of Rent due under the Lease
has
occurred. Seller has not waived any obligations of Lessee under the
Lease.
(ix) The
Lease
is constituted by those documents specified in the definition thereof in this
Agreement and the Lease is in full force and effect and has not been terminated
by the Seller. If any time hereafter Seller shall obtain an original signed
copy
of the Lease (or any part thereof), Seller shall promptly deliver the same
to
Buyer or as Buyer may direct.
(b) THE
WARRANTY WITH RESPECT TO TITLE SET FORTH IN SECTION 5(a)(ii) HEREOF IS EXCLUSIVE
AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE AIRCRAFT OF SELLER
OR
ANY OF THE OTHER SELLER INDEMNITEES WHETHER WRITTEN, ORAL OR IMPLIED, AND BUYER
EXPRESSLY ACKNOWLEDGES THAT THE AIRCRAFT IS BEING SOLD ON AN “AS IS, WHERE IS”
BASIS, AND WITHOUT ANY OTHER REPRESENTATION, GUARANTIES, OR WARRANTY OF SELLER
OR ANY OF THE OTHER SELLER INDEMNITEES, EXPRESS OR IMPLIED, OF ANY KIND, ARISING
BY LAW OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING SELLER
FOR
ITSELF AND ON BEHALF OF THE OTHER SELLER INDEMNITEES SPECIFICALLY DISCLAIMS,
AND
EXCLUDES HEREFROM, AND BUYER ACKNOWLEDGES AND AGREES THAT NEITHER SELLER NOR
ANY
OTHER SELLER INDEMNITEE SHALL BY VIRTUE OF HAVING SOLD THE AIRCRAFT, BE DEEMED
TO HAVE MADE (i) ANY WARRANTY AS TO THE AIRWORTHINESS OR CONDITION OF THE
AIRCRAFT; (ii) ANY EXPRESS
9
OR
IMPLIED REPRESENTATION
OR WARRANTY AS TO THE MERCHANTABILITY, FITNESS, DESIGN, OR CONDITION OF, OR
AS
TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP IN THE AIRCRAFT; (iii) ANY EXPRESS
OR IMPLIED REPRESENTATION OR WARRANTY OF FREEDOM FROM ANY RIGHTFUL CLAIM BY
WAY
OF INFRINGEMENT OR THE LIKE; (iv) ANY IMPLIED REPRESENTATION OR WARRANTY ARISING
FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; OR (v) ANY
OTHER REPRESENTATION OR WARRANTY (EXCEPTING THE EXPRESS WARRANTY WITH RESPECT
TO
TITLE AND THE ABSENCE OF LIENS SET FORTH IN SECTION 5(a)(ii) ABOVE). NEITHER
SELLER NOR ANY OTHER SELLER INDEMNITEE SHALL HAVE ANY RESPONSIBILITY OR
LIABILITY TO BUYER OR ANY OTHER PERSON, WHETHER ARISING IN CONTRACT OR TORT,
OUT
OF ANY NEGLIGENCE OR STRICT LIABILITY OF SELLER OR SUCH SELLER INDEMNITEE OR
OTHERWISE, FOR (i) ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED
DIRECTLY OR INDIRECTLY BY THE AIRCRAFT, ANY ENGINE OR ANY PART THEREOF OR BY
ANY
INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, INCLUDING WITHOUT
LIMITATION, ANY FAILURE OF THE AIRCRAFT OR ANY PART THEREOF TO PROCESS
ACCURATELY DATE AND TIME RECORDS, (ii) THE USE, OPERATION, PERFORMANCE OF
THE AIRCRAFT OR ANY RISKS RELATING THERETO, OR (iii) THE OPERATION, SERVICING,
MAINTENANCE, REPAIR, OR IMPROVEMENT OF THE AIRCRAFT.
6. Certain
Representations, Warranties and Covenants of Buyer.
Buyer
represents, warrants and covenants as follows:
(a) Buyer
is
a corporation in good standing under the laws of California
and
has
the corporate power and authority to carry on its business as presently
conducted and to perform its obligations under this Agreement and is a “citizen
of the United States” within the meaning of the applicable provisions of the
Federal Aviation Act.
(b) Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby nor compliance by Buyer with any of the terms
and provisions hereof will contravene any law, rule or regulation binding on
Buyer or result in any breach of, or constitute any default under, any material
indenture, mortgage, chattel mortgage, deed of trust, conditional sales
contract, bank loan or credit agreement, corporate charter, by-law or other
agreement or instrument to which Buyer is a party or by which Buyer or its
properties may be bound or affected.
(c) This
Agreement and the consummation of the transactions contemplated hereby have
been
duly authorized, executed and delivered by Buyer and constitutes the valid,
enforceable and binding obligation of Buyer (subject only to the effect of
bankruptcy or insolvency laws);
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(d) No
suit
or action, investigation, inquiry or request for information by any governmental
authority or administrative agency against Buyer, no suit or action by any
private party against Buyer, and no legal or administrative proceeding has
been
instituted or threatened against Buyer which seeks to delay or prevent the
transactions contemplated hereby or challenge the terms or provisions of this
Agreement.
(e) Other
than the registration of the sale of title to the Aircraft and the assignment
of
the Lease with the International Registry, no consent, approval or authorization
of, or declaration, filing or registration with or notice to any person, entity
or governmental authority under the federal or state laws of any of the United
States governing the Buyer is required to be made or obtained by Buyer in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by Buyer.
(f) Buyer
has
inspected the Aircraft and BUYER WILL TAKE AND ACCEPT THE AIRCRAFT “AS IS” AND
“WHERE IS”, WITHOUT RECOURSE TO OR WARRANTY BY SELLER EXCEPT AS SPECIFICALLY
STATED IN SECTION 5(a)(ii) HEREOF.
7. Indemnification.
(a) By
Buyer.
Buyer
agrees to indemnify, defend and hold harmless each Seller Indemnitee from any
and all liabilities, damages, losses, expenses, demands, claims, suits or
judgments by, or on behalf of Buyer, or any third party or parties, including
reasonable attorneys' fees and disbursements, arising from or relating to (i)
any breach of any representation, warranty or covenant made by Buyer under
this
Agreement, (ii)
any
obligations of the lessor arising under or related to the Lease on and after
the
Effective Time and
(iii)
for death of, or bodily injury to, any person, and for the loss of, damage
to,
or destruction of any property, in any manner arising out of the Aircraft,
or
any defect therein, or the leasing, care, control, ownership, registration,
maintenance, use or operation of the Aircraft on and after the Effective Time.
Buyer's obligations to any Seller Indemnitee hereunder shall not apply to any
death, injury, loss, damage or destruction which was caused by the gross
negligence or willful misconduct of such Indemnitee. Buyer shall have the
obligation to control the negotiation and settlement of any claim or defense
of
any action or suit brought against any of the parties indemnified pursuant
to
this Section 7(a). Each Seller Indemnitee shall reasonably assist Buyer, if
requested by Buyer, in the defense of any such action or suit, at Buyer's
expense, without releasing or waiving any obligation, liability or undertaking
on the part of Buyer under this Section 7(a).
(b) By
Seller.
Seller
agrees to indemnify, defend and hold harmless each Buyer Indemnitee from any
and
all liabilities, damages, losses, expenses, demands, claims, suits or judgments
by, or on behalf of Seller, or any third party or parties, including reasonable
attorneys' fees and disbursements, arising from or relating to (i) any breach
of
any representation, warranty or covenant made by Seller under this Agreement,
(ii) any obligations of the lessor arising under or related to the Lease prior
to the Effective Time and (iii) for death of, or bodily injury to, any person,
and for the loss of, damage to, or destruction of any property, in any manner
arising out of the Aircraft, or any defect therein, or the leasing, care,
control, ownership, registration, maintenance, leasing, use or operation of
the
Aircraft before the Effective Time. Seller's obligations to any Buyer Indemnitee
hereunder shall not apply to any death, injury, loss, damage or destruction
which was caused by the gross negligence or willful misconduct of such Buyer
Indemnitee. Seller shall have the obligation to control the negotiation and
settlement of any claim or defense of any action or suit brought against any
of
the parties indemnified pursuant to this Section 7(b). Each Buyer Indemnitee
shall reasonably assist Seller, if requested by Seller, in the defense of any
such action or suit, at Seller's expense, without releasing or waiving any
obligation, liability or undertaking on the part of Seller under this Section
7(b).
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8. Commissions
and Brokers.
Neither
Seller nor Buyer has engaged the services of a broker or similar representative
with respect to this transaction, other than the engagement of Sigma Aircraft
Management, LLC by Seller. Each party agrees to indemnify and hold the other
harmless from and against any and all other claims, suits, damages, costs and
expenses (including, but not limited to reasonable attorney’s fees) asserted by
any agent, broker or other third party for any commission or compensation of
any
nature whatsoever based upon the sale of the Aircraft, if such claim, damage,
cost or expense arises out of any action or alleged action by the indemnifying
party, its employees or agents.
9. Taxes.
The
Purchase Price for the Aircraft does not include the amount of any Taxes, and
Buyer shall be responsible for and shall pay the amount of any applicable Taxes
arising out of the transfer of title to the Aircraft from Seller to Buyer.
In
the event Seller shall have paid or is required to pay any Taxes for which
Buyer
is responsible pursuant to this Section 9, Buyer shall indemnify and hold Seller
(or Owner Participant, as the case may be) harmless on an after tax basis from
and against such Taxes, and from all attorneys’ fees, costs and expenses
incurred in connection with such Taxes. If any claim is made against Seller
(or
Owner Participant, as the case may be) for Taxes for which Buyer is responsible
pursuant to this Section 9, Seller shall promptly notify Buyer. Seller (or
Owner
Participant, as the case may be) shall solely be liable for, and Buyer shall
have no obligation in respect of, any Taxes based on the net income of Seller
(or Owner Participant, as the case may be). Seller and Buyer agree to use
commercially reasonable efforts (without cost to either party unless otherwise
agreed) to minimize the risk of imposition of Taxes and if Taxes are imposed
to
reduce the effect and amount thereof, including applying for
refunds.
10. International
Registry Filings.
Seller
and Buyer each agree to appoint Aviation Counsel to act as its professional
user
entity in connection with the Closing, subject to satisfaction of the conditions
specified in Sections 3 and 4 hereof, to initiate all filings of and to file
all
interests in aircraft objects relating to this transaction with the
International Registry under the Convention on International Interests in Mobile
Equipment and the Protocol to the Convention on Matters Specific to Aircraft
Equipment (collectively, the “Cape Town Rules”), and each hereby consents to
such filings. Seller and Buyer each agree that prospective filings can be made
with respect to the sale of the Aircraft upon satisfaction of the conditions
precedent to Closing other than the arrival of the Aircraft at the Delivery
Location.
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11. Further
Assurances.
Seller
and Buyer shall, from time to time, do and perform such other and further acts
and execute and deliver any and all such other and further instruments as may
be
required by law or reasonably requested by the other party to establish,
maintain and protect the respective rights and remedies of the other and to
carry out and effect the intent and purpose of this Agreement.
12. Successors
and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of Seller and
Buyer, and their respective successors and assigns. This Agreement may not
be
assigned by either party without the prior written consent of the other.
Notwithstanding the foregoing, Seller hereby consents to the collateral
assignment by Buyer of its rights (but not its obligations) hereunder to
Lender.
13. Entire
Agreement; Amendments.
This
Agreement (including all schedules and attachments hereto) embodies the complete
and entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes all prior oral or written communications
regarding the subject matter hereof. Any amendment hereto must be in writing,
be
signed by all parties and specifically refer to this Agreement. This Agreement
will be binding upon the successors and assigns of the parties
hereto.
14. Expenses.
Each
party hereto shall bear its own costs and expenses, including costs of legal
and
other professional counsel. Seller and Buyer shall each pay one-half of the
fees, expenses and costs (including legal fees) of Lessee, if any, incurred
in
connection with the sale of the Aircraft and the assignment of the Lease. Buyer
and Seller shall each pay one-half of the fees, expenses and costs of Aviation
Counsel, including without limitation all filing fees payable pursuant to the
Cape Town Rules.
15. Applicable
Law.
THIS
AGREEMENT AND ALL OTHER RELATED INSTRUMENTS AND DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, IN ALL RESPECTS,
BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE
(OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW)),
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. Each
of
the parties hereto hereby submits to the nonexclusive jurisdiction of the courts
of the State of New York and any federal court of the United States of America
sitting in New York, New York and consents to the service of process out of
any
of the foregoing courts by mailing of copies of the summons and proceedings
thereof to such party at the address below.
16. Notices.
Any
notice required or permitted to be given pursuant to this Agreement shall be
sent by overnight delivery by a U.S. nationally-recognized courier service
or
facsimile transmission, receipt acknowledged, to the addresses appearing beneath
the signatures of the parties hereto or to such other address as the party
to
receive the notice from time to time may designate in writing. Any notice so
delivered will be effective upon the actual receipt thereof by the party to
whom
such notice is addressed.
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17. Survival
of Representations.
All
representations, warranties and indemnities contained in this Agreement shall
survive the Closing Date, and shall continue in effect notwithstanding any
expiration or termination of this Agreement to the extent required for full
performance and satisfaction thereof.
18. Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts together shall constitute one and the same instrument.
19. Waiver.
Neither
this Agreement nor any provision hereof may be changed, waived or discharged
orally but only by an instrument in writing signed by the party against which
enforcement of the change, waiver or discharge is sought.
20. Post-Closing
Insurance.
Buyer
shall use commercial reasonably efforts (at no cost to Buyer) so that the Seller
Indemnitees shall be named as an additional assured party on the Lessee’s third
party legal liability insurance with respect to the Aircraft for a period of
two
years after the Closing Date.
21. The
Owner Trustee. Xxxxx
Fargo Bank Northwest, National Association
is
executing this Agreement solely in its capacity as Owner Trustee under the
Trust
Agreement and not in its individual capacity (except as expressly stated herein)
and in no case shall Xxxxx
Fargo Bank Northwest, National Association
(or any
entity acting as Owner Trustee under the Trust Agreement) be personally liable
for or on account of any of the statements, representations, warranties,
covenants or obligations stated to be those of the Seller hereunder, all such
liability, if any, being expressly waived by the parties hereto and any Person
claiming by, through, or under such party.
[signature
page follows]
14
IN
WITNESS WHEREOF, the parties hereto have caused this
Aircraft Purchase Agreement
C-GVTA to be executed by their duly authorized representatives effective as
of
date first written above.
|
Seller:
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
Not
in its individual capacity but solely as Owner Trustee
By:________________________________
Name:______________________________
Title:_______________________________
|
Buyer:
COMPASS
CAPITAL CORPORATION
By:________________________________
Name:______________________________
Title:_______________________________
|
|
Corporate
Trust Lease Group
000
Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
XXX:
X0000-000
Xxxx
Xxxx Xxxx, XX 00000
Attention:
Xxxxxxx Xxxxxx, Vice President
T
000-000-0000
F
000-000-0000
With
a copy to Owner Participant:
PLM
Equipment Growth Fund V Liquidating Trust
c/o
PLM Financial Services, Inc., Trustee
Address:
0000 Xxxxxx Xxxx.
Xxx
Xxxxx, XX 00000
Attention:
Xxxxxxx Xxxxx, Chief Financial Officer
T
000-000-0000
F
619-299-4133
|
000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxx X. Xxxxx, E.V.P.
T
415-392-4900
F
415-392-9142
|
