FLOOR PLAN FINANCE AGREEMENT
This
Floor Plan Finance Agreement (“Agreement”) is between AVANTAIR, INC., 0000
Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, Telephone: 000-000-0000, Fax:
000-000-0000, hereinafter referred to as the "Borrower," and MIDSOUTH SERVICES,
INC., or assigns, 000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000, Telephone:
000-000-0000, Fax: 000-000-0000, hereinafter referred to as the "Lender." Escrow
agent will be INSURED AIRCRAFT TITLE SERVICE, 0000 X.X. 00xx
Xxxxxx,
Xxxxxxxx Xxxx, XX 00000, Telephone: 000-000-0000, Fax: 000-000-0000, hereinafter
referred to as the "Escrow Agent."
WHEREAS,
the
Borrower has certain Xxxxxxx X-000 aircraft beginning with Serial Number 1150
and U.S. Registration Number N176SL (Avantair Aircraft #40) that they elect
to
finance or remain financed pursuant to this Agreement beginning on August 1,
2008 (“Delivery Date”). The Net Purchase Price for the Aircraft is attached as
“Attachment A”;
WHEREAS,
Lender
shall loan or have loaned Borrower the Net Purchase Price on the actual delivery
date of each aircraft listed on Attachment A (“Delivery Date”) pursuant to the
terms and conditions of this Agreement.
Now
therefore, in consideration of the terms and conditions herein contained, the
parties agree as follows:
|
1.
|
Term.
The term of this Agreement shall commence on the Delivery Date and
shall
terminate three (3) months thereafter (“Initial Term”). Borrower shall
have the sole option at the end of the Initial Term to renew this
Agreement monthly for up to three (3) consecutive one (1) month Terms
(“Monthly Renewal Option”). Borrower shall provide Lender with written
notice at least fifteen (15) days in advance (with e-mail as an acceptable
format) of its intent to extend the Agreement for each Monthly Renewal
Option. It is expressly agreed that the terms of this Agreement shall
apply to all Monthly Renewal Options.
|
|
2.
|
Purchase
Price.
On
or before each Actual Delivery Date, Lender agrees to pay the Net
Purchase
Price as specified on Attachment A for the applicable aircraft via
direct
wire transfer to the Escrow account. Borrower shall notify Lender
at least
ten (10) days prior to the Actual Delivery Date of their intention
to have
Lender loan the Net Purchase Price for an aircraft. In addition,
it is
agreed between the parties that Lender shall only be required to
loan the
Net Purchase Price for one aircraft at a time. However, Lender agrees
to
loan the Net Purchase Price for each aircraft listed on Attachment
A
assuming that Borrower relinquishes the debt for the prior aircraft
prior
to Lender loaning the Net Purchase Price for the subsequent aircraft.
|
|
3.
|
Transaction
Fee.
As
consideration for Lender providing the Net Purchase Price for any
aircraft
during the Term of this Agreement, Borrower agrees to pay Lender
a monthly
fee in the amount of Seventy Five Thousand US Dollars ($75,000.00)
(“Transaction Fee”). The initial Transaction Fee shall be due in arrears
one month after the Actual Delivery Date, which shall be on or about
September 1, 2008 and shall not be contingent on whether Lender provides
Borrower with the Net Purchase Price for any aircraft during the
preceding
month. In the event that Borrower does not elect to exercise the
Monthly
Renewal Option, Borrower shall not be responsible for the Transaction
Fee
following the expiration of the Initial Term. Borrower shall remit
the
Transaction Fee to Lender via wire transfer.
|
|
4.
|
Insurance. Borrower
shall maintain adequate insurance on the Aircraft and provide Lender
and
Auburn Bank of Opelika with a Certificate of Insurance listing Auburn
Bank
of Opelika as lien holder and Lender as an additional insured
|
page
1of
3
|
5.
|
Title
and Liens.
Borrower agrees that on the Actual Delivery Date, Lender shall be
permitted to file a lien on the aircraft securing the amount of the
Net
Purchase Price paid to manufacturer. On the Actual Delivery Date,
Borrower
and Lender may agree to allow title to transfer from Piaggio America
to
Avantair, Inc, instead of from Piaggio America to MidSouth Services,
Inc.
All liens imposed on the aircraft by Lender must be removed on or
before
the date that Borrower repays the Net Purchase Price to Lender so
that
Borrower has free and clear title to the aircraft, unless Borrower
is in
default by not paying the Transaction Fee after given a ten (10)
day
period to cure the default as set forth in Section 6
below.
|
|
6.
|
Release
of Liens.
Prior to the date that Borrower repays the Net Purchase Price to
Lender
(“Avantair Actual Delivery Date”), Lender will place any required
Release(s) of Lien with Escrow Agent. Borrower will place the funds
due to
Lender with Escrow Agent, along with the escrow closing fees. Lender
shall
be notified at least seven (7) days prior to the Avantair Actual
Delivery
Date. Lender hereby agrees to fully cooperate with Borrower and Escrow
Agent to effect, amend, discharge and/or consent to registrations
with
respect to the Aircraft on the International Registry for the benefit
of
Borrower and/or their fractional owners. Lender also shall provide
a
letter of instruction to the Escrow Agent or any other person designated
by Lender granting the person authority to release any and all liens
on
the aircraft that were imposed by Lender in the event of Lender’s death or
incapacity which could preclude such release of liens.
|
|
7.
|
Default.
Upon failure of Lender, without default by Borrower, to comply with
the
terms and conditions of this Agreement, Borrower may elect to cancel
this
agreement upon written notice to Lender, however, no breach shall
be
deemed to have occurred until Lender has ten (10) days to cure, which
shall run from the date of receipt of written notice (e-mail or facsimile
acceptable). Borrower retains the right to retain any Transaction
Fees
owed to Lender, not as forfeiture, but as liquidated damages for
Borrower’s breach of this
Agreement.
|
|
Upon
failure of the Borrower, without default of Lender, to comply with
the
terms and conditions of this Agreement, Lender may elect to cancel
this
agreement upon written notice to Borrower, however, no breach shall
be
deemed to have occurred until Borrower has ten (10) days to cure,
which
shall run from the date of receipt of written notice (e-mail or facsimile
acceptable). In the event of a breach by Borrower, Lender shall be
permitted to use any adequate remedy at law to recover damages caused
by
the breach. Borrower also shall position blank bills of sale with
the
Escrow Agent so that title in the aircraft may be transferred to
Lender in
the event of Borrower’s material default of this Agreement.
|
| 8. |
Excusable
Delay.
Neither Lender nor Borrower shall be liable to each other for any
failure
or delay in performing any of their obligations hereunder caused
by an act
of God, the public enemy, strike or labor dispute, governmental regulation
or priorities and force majeure not involving the fault or negligence
of
either party.
|
| 9. |
Assignability.
This Agreement shall not be modified or amended except by the mutual
consent of the parties in writing.
|
|
10.
|
Partial
Illegality.
If
any one or more provisions of this Agreement shall be found to be
illegal
or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or
impaired.
|
page
2of
3
| 11. |
Notification.
For the purposes of negotiating and finalizing this Agreement, any
document, including this Agreement, transmitted by facsimile or e-mail,
shall be treated in all manner and respects as an original document.
The
signature of any party on such document shall be considered for these
purposes as an original signature. Any such document shall be considered
to have the same binding legal effect as an original document. At
the
request of either party, any such document shall be re-executed by
both
parties in the original form. In consideration of the promises made
and
value received hereunder, the undersigned parties hereby agree that,
after
a document has been executed and transmitted by facsimile or e-mail,
neither party shall raise the use of a facsimile or e-mail, or the
lack of
a document bearing an original signature, as a defense to this Agreement
and forever waive such defense.
|
| 12. |
International
Registry.
Borrower and Lender shall comply with the Cape Town Convention Protocol
for International Registry Regulations and Procedures regarding the
International Registration of the Aircraft prior to closing. Each
party
shall bear the cost for registration of their company with the
International Registry and any fees associated therewith.
|
| 13. |
General.
|
| A. |
In
all respects, time shall be of the essence in this
Agreement.
|
| B. |
This
agreement shall bind and inure to the benefit of the parties hereto
and
their
executors, administrators, heirs and
assigns.
|
|
C.
|
This
agreement may be executed in two or more counterparts, each of which
shall
be deemed an original and shall be effective when executed by both
parties.
|
|
D.
|
This
agreement supersedes all previous agreements, if any, including but
not
limited to the Floor Plan Finance Agreement dated by the parties
on
February 21, 2008, which is hereby
terminated.
|
Signed,
sealed and delivered this 31st
day of
July, 2008.
|
LENDER:
|
||
|
MIDSOUTH
SERVICES, INC.
|
||
|
/s/
Xxxxx Xxxxxxx
|
/s/
Xxxx Xxxxxx
|
|
|
Signature
|
Signature
|
|
|
Chief
Operating Officer
|
President
|
|
|
Title
|
Title
|
|
|
July
31, 2008
|
||
|
Date
|
Date
|
page
3of
3
