EX-10.1
2
plunapurchaseagreement.htm
PLUNA PURCHASE AGREEMENT
EXHIBIT
10.1
AIRCRAFT
PURCHASE AGREEMENT
dated
as
of December 29, 2006
among
PLM
FINANCIAL SERVICES, INC.,
as
successor to PLM Transportation Equipment Corporation,
not
in
its individual capacity, but solely as owner trustee
for
the
benefit of the Owner Participants
as
Seller
and
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION,
not
in
its individual capacity, but solely as owner trustee
for
the
benefit of the Beneficiary,
as
Purchaser
One
Boeing Model B737-300 Aircraft,
Manufacturer’s
Serial No. 24700 and
bearing
Uruguayan Registration Xxxx CX-PUA
and
Two
CFM56-3B1 Engines,
Manufacturer’s
Serial Nos. 724644 and 724657
1
AIRCRAFT
PURCHASE AGREEMENT
AIRCRAFT
PURCHASE AGREEMENT, dated as of December 29, 2006 (this “Agreement”),
among
PLM FINANCIAL SERVICES, INC., as successor to PLM Transportation Equipment
Corporation, a Delaware corporation (“PLM”),
not in
its individual capacity but solely as owner trustee for the benefit of the
Owner
Participants (the “Seller”),
and
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking association
(“WFB”),
not
in its individual capacity but solely as owner trustee for the benefit of the
Beneficiary (the “Purchaser”).
RECITALS:
Seller
desires to sell to Purchaser, and Purchaser desires to purchase from Seller,
all
of Seller’s right, title and interest in, to and under the Aircraft (as defined
herein) and all of Seller’s right, title, interest, obligations, duties and
liabilities under the Lease Agreement, dated December 6, 2001, between
Seller, as lessor, and PLUNA - Lineas Aereas Uruguayas S.A., as lessee
(“Lessee”), as amended (the “Lease”),
arising on or after the Delivery Time (as defined herein).
The
Lease
allows such sale, purchase, assignment and assumption, subject to the
satisfaction of certain conditions set forth therein.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements of the parties contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION
1. Definitions;
Rules of Interpretation.
1.1 Definitions
.
For
purposes of this Agreement the following terms shall have the meanings
specified:
“Affiliate”
means
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under common control with such Person.
“Agreed
Courts”
has
the
meaning set forth in Section 15.2.
“Aircraft”
means
collectively the Airframe, the Engines, the APU and the Aircraft
Documents.
“Aircraft
Acceptance Certificate”
means
the Aircraft Acceptance Certificate substantially in the form of Exhibit
C.
“Aircraft
Documents”
means
the documents, data and records identified in Part 2 of Schedule 1 to the Lease
and all additions, renewals, revisions and replacements from time to time made
in accordance with the lease.
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“Airframe”
means
collectively (i) the Boeing Model B737-300 airframe bearing manufacturer’s
serial no. 24700 and Uruguayan registration xxxx CX-PUA, (ii) all Parts
owned by the Seller incorporated in, installed on, attached to or appurtenant
to
such airframe, and (iii) all substitutions, replacements or renewals from
time to time made in or to any of the Parts referred to in the preceding clause
(ii) as required or permitted by the Lease.
“Applicable
Law”
means,
as to any Person, all (i) laws, treaties and international agreements of
any national government, (ii) laws of any state, province, territory,
locality or other political subdivision of a national government, and
(iii) rules, regulations, judgments, decrees, orders, injunctions, writs,
directives, licenses and permits of any Governmental Body (including monetary
authorities and arbitration authorities), in each case that are applicable
to or
binding on such Person or any of its property or to which such Person or any
of
its property is subject.
“APU”
means
the auxiliary power unit manufactured by Xxxxxxx, model TTCP85-129, serial
number P-165.
“Assignment
Agreement”
means
the Lease Assignment and Assumption Agreement, to be dated the Closing Date
and
entered into between Seller and Purchaser substantially in the form attached
as
Exhibit A.
“Beneficiary”
means
DB Aircraft Leasing Master Trust, a Delaware statutory trust under a Master
Trust Agreement, dated as of September 26, 2005, among Xxxxx Fargo Delaware
Trust Company, DB Equipment Leasing, Inc., the administrative trustees and
the
holders of the beneficial interest from time to time, and its successors and
assigns.
“Business
Day”
means
a
day on which banking institutions in New York, New York are open for the
transaction of business.
“Delivery
Date”
has
the
meaning set forth in Section 2.2.
“Delivery
Time”
has
the
meaning set forth in Section 2.2.
“Due
Diligence Inspection Date”
means
October 30, 2006.
“Economic
Closing Date”
means
November 15, 2006.
“Engines”
means
collectively (i) the two CFM Model CFM56-3B1 aircraft engines bearing
manufacturer’s serial nos. 724644 and 724657, (ii) all Parts owned by the
Seller incorporated in, installed on, attached to or appurtenant to such
engines, and (iii) all substitutions, replacements or renewals from time to
time made in or to any of the Parts referred to in the preceding clause (ii)
as
required or permitted by the Lease.
“Event
of Loss”
shall
have the meaning ascribed to such term in the Lease.
“Excepted
Rights”
has
the
meaning given to such term in Section 2.2.
3
“Fourth
Amendment to Lease”
means
the Fourth Amendment to Lease, between Purchaser and Lessee, substantially
in
the form of Exhibit B to the Lessee Acknowledgement.
“Governmental
Body”
means
any department, commission, board, bureau, court, legislature, agency,
instrumentality or authority of any national government or any political
subdivision of a national government.
“Interest
Rate”
means
4.0% per annum.
“Lease
Deposit”
has
the
meaning given to such term in Section 6.12(a)(iv).
“Lessee
Acknowledgement”
means
an Acknowledgment and Acceptance of Assignment by the Lessee, as contemplated
by
Section 14.2.c.i of the Lease, substantially in the form attached as
Exhibit B.
“Lien”
means
any mortgage, charge, pledge, lien, claim, encumbrance, assignment,
hypothecation, right of set-off or any agreement or arrangement having the
effect of creating any of the foregoing.
“Net
Purchase Payment”
means
the amount set forth in Schedule 1 hereto as being payable by Purchaser to
Seller on the Delivery Date, such amount being the Purchase Price for such
Delivery Date minus the Purchase Deposit, the Total Reserves, the Lease Deposit
and accrued interest on the Lease Deposit through the day before the Delivery
Date.
“Owner
Participants”
means
PLM Equipment Growth Fund VI Liquidating Trust and PLM Growth and Income Fund
VII Liquidating Trust.
“Parts”
means
all appliances, parts, instruments, appurtenances, accessories, furnishings
and
other equipment or components of whatever nature, including landing gear,
auxiliary power units, navigation systems, radar and radio but excluding
complete Engines or engines.
“Person”
means
any individual, corporation, partnership, limited liability company, limited
liability partnership, joint venture, association, joint stock company, trust,
unincorporated organization or Governmental Body.
“PLM”
has
the
meaning given to such term in the Preamble.
“Purchase
Deposit” A
sum of
U.S. One Hundred Thousand Dollars ($100,000) advanced by Beneficiary to Seller
to secure the purchase of the Aircraft.
“Purchase
Documents”
means
this Agreement, the Warranty Xxxx of Sale, the Assignment Agreement, the Lessee
Acknowledgement and the Aircraft Acceptance Certificate.
“Purchase
Price”
means
the amount set forth in Schedule
1
hereto
for the date on which the Delivery Date occurs.
“Purchaser”
has
the
meaning given to such term in the Preamble.
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“Responsible
Officer”
means
with respect to any Person, any managing director, general manager, deputy
general manager, vice president or other senior officer who, in the normal
performance of his or her operational responsibilities, with respect to the
subject matter of any covenant, agreement or obligation of such party pursuant
to any instrument, would have responsibility for such matter and the
requirements of such instrument with respect thereto.
“Scheduled
Delivery Date”
has
the
meaning given such term in Section 2.3.
“Seller”
has
the
meaning given to such term in the Preamble.
“Seller’s
Account”
means
Bank: Comerica Bank, Account No.: 1891533166, Account Name: PLM International,
Inc., ABA Routing No.: 000000000, Ref: Boeing 737 S/N 24700.
“Special
Uruguayan Counsel”
means
Xxxxx & Regules, special Uruguayan counsel to Purchaser.
“Taxes”
means
any and all present and future taxes, duties, withholdings, levies, assessments,
imposts, fees and other governmental charges of all kinds (including without
limitation any value added or similar tax and any stamp, documentary,
registration or similar tax), together with any penalties, fines, surcharges
and
interest thereon and any additions thereto.
“Termination
Date”
means
December 31, 2006.
“Total
Reserves”
means
the amount specified as such in Schedule
2.
“Transaction
Documents”
has
the
meaning given such term in Section 6.8.
“Transfer
Taxes”
means
any sales, use, excise, transfer, gross receipts, value added or any other
similar taxes, fees or charges that may be imposed by any Governmental Body
in
any jurisdiction as a result of the sale and assignment of the Aircraft and
the
Lease under this Agreement.
“Trust
Agreement”
means
the Trust Agreement between the Beneficiary and Xxxxx Fargo Bank Northwest,
National Association (Owner Trust 24700), dated as of December 12,
2006.
“Uruguayan
Filings”
means
the filings with the Uruguayan Civil Aviation Authority of Spanish translations
of the Warranty Xxxx of Sale, the Lease Assignment Agreement and the Fourth
Amendment to Lease, in each case duly executed, notarized, consularized and
legalized, to reflect the transfer of the Aircraft and the Lease from Seller
to
Purchaser.
“Warranty
Xxxx of Sale”
means
a
full warranty xxxx of sale from Seller to Purchaser in the form attached as
Exhibit D.
“WFB”
has
the
meaning given to such term in the Preamble.
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1.2 Rules
of Interpretation
.
The
following rules of interpretation shall apply to this Agreement:
(a) the
singular includes the plural and the plural includes the singular;
(b) “or”
is
not exclusive and “include” and “including” are not limiting;
(c) a
reference to a law includes any amendment or modification to such law and any
rules or regulations issued thereunder or any law enacted in substitution or
replacement therefor;
(d) a
reference to a person includes its permitted successors and
assigns;
(e) a
reference to any document shall include that document as amended, novated,
assigned or supplemented;
(f) a
reference in this Agreement to a Section, Schedule or Exhibit without further
reference is to the relevant Section, Schedule or Exhibit of this Agreement;
and
(g) a
reference in this Agreement to “actual knowledge” shall mean, with respect to
any Person, the actual knowledge of, including receipt of written notice by,
a
Responsible Officer of such Person.
SECTION
2. Sale,
Assignment and Assumption.
2.1 Sale
of Aircraft
.
Subject
to the terms and conditions of this Agreement, (a) Seller agrees to sell,
convey and transfer to Purchaser without any representations or warranties
except as set forth herein or in the Warranty Xxxx of Sale, and Purchaser agrees
to purchase and accept, all of Seller’s right, title and interest in, to and
under the Aircraft, and (b) Seller agrees to assign, and Purchaser agrees
to accept and assume, all of Seller’s rights and obligations under the Lease, in
each case at the Delivery Time, pursuant to, in accordance with and to the
extent provided in this Agreement, the Warranty Xxxx of Sale and the Assignment
Agreement.
2.2 Delivery;
Risk of Loss; Excepted Rights
.
Seller’s delivery of the Warranty Xxxx of Sale to Purchaser, and Purchaser’s
delivery of the Aircraft Acceptance Certificate to Seller, shall conclusively
evidence the sale of the Aircraft from Seller to Purchaser, and risk of loss
of
or damage to the Aircraft shall pass from Seller to Purchaser at the time stated
in the Aircraft Acceptance Certificate as being the time at which the transfer
took place (the “Delivery
Time”).
The
date on which the Delivery Time occurs is herein referred to as the
“Delivery
Date.”
Seller
shall retain all of its rights
relating to the Lease that have arisen or accrued prior to the Delivery Time
(the “Excepted
Rights”),
such
Excepted Rights to include, without limitation, (i) the right to receive any
amounts due or accrued to Seller under the Lease in respect of the Aircraft
prior to the Delivery Time, (ii) any rights to indemnification or liability
insurance under the Lease with respect to any period prior to the Delivery
Time.
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2.3 Delivery
Date
.
The
Delivery Date for the Aircraft is, as of the date hereof, scheduled to occur
on
or about December 29, 2006 (the “Scheduled
Delivery Date”).
The
exact Delivery Date will be designated by Seller, and if a date other than
the
Scheduled Delivery Date, Seller will give notice thereof to Purchaser, at least
one (1) Business Days in advance thereof. The closing of the transactions
contemplated hereby shall take place on the Delivery Date at the offices of
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
2.4 Delivery
Location
.
Seller
shall deliver the Aircraft to Purchaser on the Delivery Date, in accordance
with
the terms hereof, in such location and jurisdiction designated by Seller which
it determines to be acceptable for taxation purposes and that is reasonably
acceptable to Purchaser. Seller and Purchaser shall cooperate to ensure that
the
Aircraft is located at the Delivery Time in a jurisdiction that eliminates
the
imposition upon Purchaser or Seller of any Transfer Taxes arising out of the
sale of the Aircraft pursuant to this Agreement, and shall take all actions
reasonably requested by the other that are not in contravention of any provision
of the Purchase Documents to eliminate any Transfer Taxes applicable to this
Agreement or the consummation of the transactions contemplated by this
Agreement.
2.5 Disclaimer
.
THE
REPRESENTATIONS AND WARRANTIES OF THE SELLER SET FORTH IN THIS AGREEMENT ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES OF SELLER,
WHETHER WRITTEN, ORAL OR IMPLIED. PURCHASER ACKNOWLEDGES AND AGREES
(i) THAT THE AIRCRAFT IS, AND AT THE TIME OF THE DELIVERY TIME WILL BE, IN
“AS IS, WHERE IS” CONDITION, AND (ii) THAT SELLER SHALL NOT, BY VIRTUE OF
HAVING OWNED AND SOLD THE AIRCRAFT OR OTHERWISE, BE DEEMED TO HAVE MADE ANY
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, OR TO HAVE MADE ANY OTHER REPRESENTATIONS OR WARRANTIES (EXCEPT THE
EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT), AND SELLER DISCLAIMS AND
PURCHASER WAIVES ALL WARRANTIES, GUARANTIES AND LIABILITIES, EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE (INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT
TO FITNESS, MERCHANTABILITY OR LOSS OF USE, OR STRICT LIABILITY IN TORT OR
CONSEQUENTIAL DAMAGES) WHETHER OR NOT OCCASIONED BY SELLER’S NEGLIGENCE, AND
EACH OF BENEFICIARY AND PURCHASER ACKNOWLEDGES AND AGREES THAT IN NO EVENT
SHALL
SELLER BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY OR FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR FOR ANY OTHER LOSS OR DAMAGE WHATSOEVER, PURCHASER
AGREEING THAT ALL SUCH RISKS ARE TO BE BORNE BY PURCHASER AFTER THE CLOSING
DATE.
7
SECTION
3. Purchase
Price; Adjustments; Termination.
3.1 Payment
of Purchase Price
.
(a) Subject
to the terms and conditions of this Agreement, at the Delivery Time Purchaser
shall pay the Net Purchase Payment for such Delivery Date, as set forth in
Schedule
1,
to
Seller’s Account. All payments due to Seller hereunder shall be effected in
United States dollars in immediately available funds without any set-off,
counterclaim or deduction of whatsoever nature by wire transfer to the foregoing
account. Payments will be deemed to have been made when such amounts have been
credited and confirmed as immediately available funds to such designated
account
(b) Deposit.
Beneficiary has advanced the Purchase Deposit to the Owner Participants for
the
benefit of Seller, and Seller agrees to apply the Purchase Deposit to payment
of
the Purchase Price at the Delivery Time or as otherwise applied as provided
herein. The Purchase Deposit is non-refundable except as provided in
Sections 3.2, 3.3, 3.4 and 3.5.
3.2 Termination
Date
.
If the
Delivery Time has not occurred at or before 5:00 p.m. (New York time) on
the Termination Date for any reason whatsoever other than the default of
Purchaser or the application of Section 3.3, 3.4 or 3.5 hereof, this
Agreement shall automatically terminate, Seller shall promptly return the
Deposit to Purchaser, and the parties shall have no further liability to each
other with respect to the sale of the Aircraft and this Agreement. If the
Delivery Time has not occurred at or before 5:00 p.m. (New York time) on
the Termination Date because of the default of Purchaser, then Seller may,
by
written notice to Purchaser, terminate this Agreement and retain the Purchase
Deposit, and the parties shall have no further liability to each other with
respect to the sale of the Aircraft or this Agreement. Purchaser and Seller
agree that no party hereto shall be responsible for any indirect, consequential
or punitive damages whatsoever.
3.3 Damage
before Delivery Time
.
(a) If
before the Delivery Time but after the Due Diligence Inspection Date, the
Aircraft suffers damage that does not constitute an Event of Loss, then Seller
shall promptly notify Purchaser of such damage and shall notify Purchaser as
soon as reasonably practicable of its opinion as to whether such damage is
repairable prior to the Termination Date;
(b) If
repairs of such damage or fault can reasonably be expected to be completed
prior
to the Termination Date, and such damage or fault and the repair thereof will
not have an adverse affect on the marketability of the Aircraft (as reasonably
determined by Purchaser), Seller shall use reasonable efforts to procure the
repair of such damage as soon as reasonably practicable; however, if such repair
is not completed and the Aircraft is not delivered to Purchaser on or before
the
Termination Date, Purchaser may elect nevertheless to take delivery of the
Aircraft and Lease by providing written notice thereof to Seller. If Purchaser
elects not to take delivery, Seller shall promptly refund the Purchase Deposit
to Purchaser and neither party shall have any further obligation or liability
to
the other with respect to the sale of the Aircraft and this Agreement;
and
8
(c) If
repairs of such damage cannot reasonably be expected to be completed prior
to
the Termination Date, Seller shall immediately notify Purchaser whereupon
Purchaser may elect nevertheless to take delivery of the Aircraft, but if
Purchaser does not make such election, Seller shall promptly refund the Purchase
Deposit to Purchaser and neither party shall have any further obligation or
liability to the other with respect to the sale of the Aircraft and this
Agreement.
3.4 Event
of Loss before Delivery Time
.
(a) If
before the Delivery Time the Aircraft suffers an Event of Loss, then with effect
from the date on which such Event of Loss occurs, this Agreement shall without
further act terminate and the rights and obligations of the parties hereunder
shall cease and be discharged without further liability on the part of Seller
or
Purchaser, save that Seller shall promptly refund the Purchase Deposit to
Purchaser.
(b) If
before
the Delivery Time an event occurs which with the passage of time and/or a
relevant determination would constitute an Event of Loss and such event is
continuing on the Termination Date, then this Agreement may be terminated by
Purchaser or Seller by delivering written notice thereof to the other parties
hereto, and thereupon the rights and obligations of the parties hereunder shall
cease and be discharged without further liability on the part of Seller or
Purchaser, save that Seller shall promptly refund the Purchase Deposit to
Purchaser.
3.5 Material
Adverse Tax Event
.
In the
event that, notwithstanding the mutual efforts of Seller and Purchaser, either
Seller or either of the Owner Participants, on the one hand, or Beneficiary
or
Purchaser, on the other hand, would suffer a materially adverse sales, use
or
other transfer tax event as a result of the transfer of the Aircraft and the
Lease, and such material adverse tax event cannot be mitigated by all
commercially reasonable efforts of the party that would suffer such material
adverse tax event, this Agreement may be terminated by the affected party by
delivering written notice thereof to the other party hereto, and thereupon
the
rights and obligations of the parties hereunder shall cease and be discharged
without further liability on the part of Seller or Purchaser, save that Seller
shall promptly refund the Purchase Deposit to Purchaser. In all events, Seller
and Purchaser shall each be responsible for their own income and gains
Taxes.
3.6 Binding
Obligations
.
This
Agreement is intended to set forth the binding obligation of Seller to sell
the
Aircraft and the binding obligation of Purchaser to purchase the Aircraft and
pay the Purchase Price, in each case, on the terms and conditions set forth
herein. On and after the Economic Closing Date, Seller shall use all reasonable
efforts to cause each of the conditions set forth in Section 5 to be
satisfied and shall take all other actions necessary to perform its obligations
under the Purchase Documents, and Purchaser shall use all reasonable efforts
to
cause each of the conditions set forth in Section 4 to be satisfied and
shall take all other actions necessary to perform its obligations under the
Purchase Documents.
9
SECTION
4. Conditions
Precedent to the Obligations of Seller
.
The
obligation of Seller to sell and assign the Aircraft and the Lease to Purchaser
at the Delivery Time is subject to the satisfaction of the following
conditions:
4.1 Purchase
Documents
.
Each of
the parties to the Purchase Documents other than Purchaser shall have executed
and delivered the Purchase Documents.
4.2 Purchase
Price; Aircraft Acceptance Certificate
.
Purchaser shall have paid the Net Purchase Payment in the manner specified
in
Section 3 and Purchaser shall have delivered the Aircraft Acceptance
Certificate to Sellers.
4.3 Due
Authorization, Execution and Delivery
.
Seller
shall have received from Purchaser authorizing documents reasonably satisfactory
to Seller evidencing that each of the signatories executing the Purchase
Documents for and on behalf of Purchaser has the authority to do
so.
4.4 Representations
and Warranties
.
The
representations and warranties of Purchaser contained in the Purchase Documents
shall be true and correct as of the Delivery Time with the same force and effect
as though made on and as of the Delivery Time.
4.5 Illegality
.
At the
Delivery Time, no change shall have occurred after the date of this Agreement
in
any law that would make it illegal for Seller or Purchaser to perform any of
its
obligations under any Purchase Document to which it is a party and any other
documents or agreements to be entered into pursuant to the Purchase
Documents.
4.6 Event
of Loss
.
At the
Delivery Time, there shall not exist an Event of Loss, or event that with the
passage of time or the making of any determination would constitute an Event
of
Loss, with respect to the Aircraft.
4.7 Transfer
Taxes
.
Seller
shall be satisfied that the Aircraft is, at the Delivery Time, located in a
jurisdiction such that no Transfer Tax will be imposed with respect to the
transactions contemplated by this Agreement, and Seller shall have received
from
Lessee confirmation of the Aircraft’s location at the Delivery
Time.
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4.8 Lease
Requirements
.
Lessee
shall have executed and delivered to Purchaser the following: (a) the
Lessee Acknowledgement, including the certification described in
Section 14.2.c.ii of the Lease, (b) the certificate of insurance and
broker’s letter described in Section 14.2.c.iii of the Lease and
(c) the opinion of counsel described in Section 14.2.c.iv of the
Lease, and Lessee shall have complied with its other obligations under
Section 14.2 of the Lease.
4.9 Opinions
.
Seller
shall have received an opinion, dated the Delivery Date, from Special Uruguayan
Counsel addressed to Purchaser and Seller with respect to such matters and
to
such effect as Purchaser shall reasonably request.
4.10 Uruguayan
Filings
.
Purchaser shall have taken such actions as are reasonably required in order
to
effect the Uruguayan Filings.
4.11 Additional
Insured
.
Seller
shall have received written confirmation that Lessee has agreed to name Seller
as an additional insured on the applicable third party legal liability insurance
with respect to the Aircraft for a period of two years after the Delivery
Date.
4.12 Transfer
of Interest
.
Purchaser shall have taken any other action reasonably requested by Seller
in
order to transfer the Aircraft and Lease to Purchaser.
SECTION
5. Conditions
Precedent to the Obligations of Purchaser
.
The
obligations of Purchaser to purchase the Aircraft and the Lease from Seller
at
the Delivery Time are subject to the satisfaction of the following
conditions:
5.1 Purchase
Documents
.
Each of
the parties to the Purchase Documents other than Seller shall have executed
and
delivered the Purchase Documents.
5.2 Transfer
Documents
.
(a)
The Lease and each other Transaction Document shall be in full force and effect
and shall have been delivered to Purchaser pursuant to Section 6.8, and no
Event of Default shall have occurred under the Lease.
(b) The
Aircraft Documents in the possession of Seller shall have been delivered to
Purchaser.
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(c) The
Seller shall have tendered the Warranty Xxxx of Sale.
(d) The
Net
Purchase Payment shall be based on (i) the Lease Deposit and interest
accrued thereon to the Delivery Date and (ii) the Total Reserves in the
amount set forth on Schedule
2
to this
Agreement.
5.3 Due
Authorization, Execution and Delivery
.
Purchaser shall have received from Seller authorizing documents reasonably
satisfactory to Purchaser evidencing that each of the signatories executing
the
Purchase Documents for and on behalf of Seller has the authority to do
so.
5.4 Representations
and Warranties
.
The
representations and warranties of Seller contained in the Purchase Documents
shall be true and correct as of the Delivery Time with the same force and effect
as though made on and as of the Delivery Time.
5.5 Illegality
.
At the
Delivery Time, no change shall have occurred after the date of this Agreement
in
any law that would make it illegal for Seller or Purchaser to perform any of
its
obligations under any Purchase Document to which it is a party and any other
documents or agreements to be entered into pursuant to the Purchase
Documents.
5.6 Event
of Loss
.
At the
Delivery Time, there shall not exist an Event of Loss or an event that, with
the
passage of time or the making of any determination, would constitute an Event
of
Loss with respect to the Aircraft.
5.7 Transfer
Taxes
.
Purchaser shall be satisfied that the Aircraft is, at the Delivery Time, located
in a jurisdiction such that no Transfer Tax will be imposed with respect to
the
transactions contemplated by this Agreement, and Purchaser shall have received
from Lessee confirmation of the Aircraft’s location at the Delivery
Time.
5.8 Opinions
.
Purchaser shall have received an opinion, dated the Delivery Date, from Special
Uruguayan Counsel addressed to Purchaser and Seller with respect to such matters
and to such effect as Purchaser and Seller shall reasonably
request.
5.9 Lease
Requirements
.
Lessee
shall have executed and delivered to Purchaser the following: (a) the
Lessee Acknowledgement, including the certification described in
Section 14.2.c.ii of the Lease, (b) the certificate of insurance and
broker’s letter described in Section 14.2.c.iii of the Lease, (c) the
opinion of counsel described in Section 14.2.c.iv of the Lease and (d) the
Fourth Amendment to Lease, and Lessee shall have complied with its other
obligations under Section 14.2 of the Lease.
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5.10 Aircraft
Condition
.
At the
Delivery Time, the Aircraft shall be (a) in substantially the same or
better condition that it was on the Due Diligence Inspection Date, ordinary
wear
and tear excepted, and (b) in compliance with the requirements of the
Lease.
5.11 Uruguayan
Filings
.
Seller
shall have taken such actions as are reasonably required in order to effect
the
Uruguayan Filings.
5.12 Transfer
of Interest
.
Seller
shall have taken any other action reasonably requested by Purchaser in order
to
transfer the Aircraft and the Lease to Purchaser.
SECTION
6. Representations
and Warranties of PLM and Seller
.
PLM, in
its individual capacity, as to its own representations in Sections 6.1, 6.2,
6.6, 6.7, 6.8, 6.10 and 6.11 only, and as Seller, each as to itself only,
represents and warrants to Purchaser that the following statements are on the
date of this Agreement, and at the Delivery Time will be, true and
accurate:
6.1 Organization
and Power
.
PLM is
duly organized and validly existing in good standing under the laws of its
jurisdiction of organization and has the requisite power and authority to enter
into and perform the transactions contemplated by the Purchase Documents to
which it is a party, whether individually or as Seller.
6.2 Due
Authorization
.
The
execution, delivery and performance by Seller of this Agreement and the other
Purchase Documents have been duly authorized by all necessary trust action
on
the part of PLM, if any, do not require any approval of the shareholders of
PLM
(or if such approval is required, such approval has been obtained) or approval
of any trustee or holder of any indebtedness or obligations of PLM or Seller,
and do not and will not contravene the charter or by laws of PLM or any current
law, governmental rule, regulation, judgment or order binding on PLM or Seller
or contravene or result in a breach of, or constitute a default under any
indenture, mortgage, contract or other agreement to which PLM or Seller is
a
party or by which PLM or Seller or the property of either of them may be bound
or affected.
13
6.3 Enforceability
.
Each of
the Purchase Documents to which it is a party has been duly executed and
delivered by Seller and constitutes the legal, valid and binding obligation
of
Seller, enforceable against Seller in accordance with its terms, except as
such
enforceability may be limited by applicable bankruptcy, insolvency or other
laws
affecting creditors’ rights in general and principles of equity.
6.4 Seller
Consents
.
Assuming the accuracy of the representations and warranties of Purchaser herein
and in the Assignment Agreement, each consent of any Person (other than Lessee)
required to be obtained by Seller to authorize, or required by Seller in
connection with the execution, delivery or performance by Seller of the Purchase
Documents to which it is a party has been obtained and is in full force and
effect (or will be obtained and in full force and effect prior to the Delivery
Time), and there is no default by Seller in the observance or performance of
any
of the conditions and restrictions (if any) imposed on or in connection with
such consent.
6.5 Non-Contravention
.
The
execution, delivery and performance by Seller of the Purchase Documents to
which
it is a party will not (i) conflict with, or result in any material breach
of any of the terms of, or constitute a default under any agreement or document
to which it is a party or by which it or any of its property or assets may
be
bound; or (ii) contravene or conflict with the provisions of its
organizational documents. Assuming the accuracy of the representations and
fulfillment of the covenants of Purchaser set forth herein and in the Assignment
Agreement, the transfer of the Aircraft and the Lease to Purchaser will not
violate any provision of any Applicable Law.
6.6 No
Litigation
.
No
action or proceeding is pending, has been instituted or, to the actual knowledge
of PLM or Seller, is threatened, before any court or Governmental Body, and
no
order, judgment or decree has been issued or, to the actual knowledge of PLM
or
Seller, is threatened, by any court or Governmental Body that would materially
adversely affect the ability of Seller to complete and consummate its
obligations contemplated by the Purchase Documents to which it is a
party.
6.7 No
Registration
.
Neither
the execution, delivery and performance by the Seller, nor the performance
by
PLM or Seller of their respective obligations under, the Purchase Documents
requires the consent, approval, order or authorization of, the giving of notice
to, the registration with or the taking of any other action in respect of any
Governmental Body, other than the Uruguayan Filings.
14
6.8 Transaction
Documents
.
Set
forth on Schedule
3
is a
true, accurate and complete list, as currently amended, modified and
supplemented, of all documents, agreements and instruments that create or confer
any benefits or rights or impose any obligations in connection with the Aircraft
or the Lease to which Seller is a party (the “Transaction
Documents”).
Seller has provided Purchaser with originals, where available, and otherwise
true and complete copies of such Transaction Documents, as so amended, modified
and supplemented. Each of the Transaction Documents is in full force and effect
with respect to Seller and, to the actual knowledge of PLM and Seller, with
respect to Lessee, and Seller has performed all obligations required to be
performed by it on or prior to the date hereof under the Transaction Documents
to which it is a party. Seller is not in breach of any of its representations,
warranties or covenants contained in any of the Transaction Documents. Seller
has received no notice of any Default or Event of Default (as such terms are
defined in the Lease), and has no actual knowledge of any such Default or Event
of Default. To PLM’s and Seller’s actual knowledge there are no set-offs,
defenses or counterclaims available against amounts owed to Seller under the
Transaction Documents.
6.9 Title
.
Legal
title to the Aircraft is held by Seller and at the Delivery Time, the Aircraft
and the Lease are free and clear of any and all Liens, other than the Lien
of
the Trust Agreement and the Lease, any Permitted Liens (as defined in the
Lease), and any Liens created by, through, under or in favor of Purchaser or
Beneficiary. Seller has not transferred or assigned any of its interest in
the
Transaction Documents to which it is a party, except for such transfers and
assignments required in connection with any Liens created by, through, under
or
in favor of Purchaser or Beneficiary.
6.10 No
Event of Loss or Damage
.
Neither
PLM nor Seller has actual knowledge that an Event of Loss or an event that,
with
lapse of time or the making of a determination or both, might become an Event
of
Loss has occurred. Neither PLM nor Seller has actual knowledge of any accident
or physical damage to the Airframe or Engines.
6.11 No
Assignment
.
As of
the date of this Agreement, Seller has not consented to any assignment by the
Lessee of its rights and/or obligations under the Operative Documents or any
sublease or transfer of possession of the Aircraft, and to PLM’s or Seller’s
actual knowledge no such assignment, sublease or transfer of possession has
occurred. Neither PLM nor Seller has actual knowledge, of (i) Lessee’s
intention to sublease the Aircraft or (ii) Lessee taking any action or
having any intention to change the country of registration of the
Aircraft.
15
6.12 Lease
Information
.
(a) Seller
confirms that
(i) pursuant
to the terms of the Lease, Basic Rent during the Term (as such term is defined
in the Lease) is payable monthly in advance on the 11th day of each calendar
month in the amount of US$128,061, the Expiry Date (as such term is defined
in
the Lease) of the Lease is April 15, 2008 and Seller has not exercised its
option under the Lease to extend the term of the Lease to Xxxxx 00,
0000,
(xx) no
Basic
Rent which is payable on any date subsequent to the date hereof has been prepaid
in whole or in part,
(iii) Seller
has provided to Purchaser a copy of any reports of Lessee to the extent provided
to Seller by Lessee pursuant to Section 8.2.b.ii (for the fiscal years
ending June, 2004 and June, 2005 only), 8.2.f (to the extent reasonably
available from the inception of the Lease but including all reports for 2006)
and 8.2.g of the Lease,
(iv) Seller
holds a Deposit (as defined in the Lease) of $310,000 under the Lease and
accrued interest on such deposit through the date hereof is $35,027.22, for
an
aggregate cash deposit of $345,027.22 (the “Lease
Deposit”),
which
amount shall increase by $43.42 each day that lapses after the date
hereof,
(v) Lessee
has paid Maintenance Reserves at the rates set forth in Schedule 7 to the Lease
for operation of the Aircraft through November 30, 2006 and the amounts of
the Maintenance Reserves as of the date hereof are set forth in Schedule
2,
(vi) there
are
no pending claims by Lessee for reimbursement from Maintenance Reserves and
Seller has paid in full all prior claims for reimbursements from Maintenance
Reserves,
(vii) Lessee
is
not, under Schedule 7 to the Lease, in arrears in respect of any payments of
“Engine Refurbishment Reserves” (as defined therein) as a result of the hour to
cycle ratio of an Engine being less than 1.0:1 in any prior year, and, with
respect to 2006, the hour-to-cycle ratio of each Engine for the period through
November 30, 2006 is between 1.02:1 and 1.3:1,
(viii) the
aggregate amounts of the individual Maintenance Reserves paid by Lessee net
of
all claims for reimbursements from such Maintenance Reserves through the date
hereof are set forth on Schedule
2
to this
Agreement,
(ix) there
are
no pending requests by Lessee for a Lessor Contribution (as defined in the
Lease) pursuant to Section 7.6 of the Lease and Seller does not have any
actual knowledge of any FAA airworthiness directive in respect of the Aircraft
that would result in a claim for a Lessor Contribution,
16
(x) Seller,
as lessor under the Lease, has the right to extend the Expiry Date by one year,
as provided in the Third Amendment to Lease Agreement, dated June 24, 2005,
between Seller and Lessee, and
(xi) the
Lease
has not been amended, modified or supplemented other than pursuant to the
Transaction Documents.
(b) Seller
has no reason to believe that any of the Aircraft specifications or other
technical information it has provided to Purchaser is false or incorrect correct
in any material respect.
6.13 Tax
Indemnification
.
To
PLM’s and Seller’s actual knowledge there has not occurred any event that would
give rise to a tax indemnification obligation of Lessee for which Seller would
have a claim, whether such obligation is imposed upon Lessee in the Lease or
in
any other document entered into by Lessee in connection with the transactions
contemplated by the Lease.
6.14 Compliance
.
Assuming the accuracy of the representations and warranties of Purchaser set
forth herein and in the Assignment Agreement, the transfer of Seller’s interest
in the Aircraft and the Lease to Purchaser contemplated hereby complies with
the
terms of the Transaction Documents (subject to satisfying the conditions set
forth in Section 14.2 of the Lease).
SECTION
7. Representations
and Warranties of WFB and Purchaser
.
WFB, in
its individual capacity and as Purchaser, each as to itself only, represents
and
warrants to Seller that the following statements are on the date of this
Agreement, and at the Delivery Time will be, true and accurate:
7.1 Organization
and Power
.
WFB is
duly organized and validly existing in good standing under the laws of the
United States of America and has the requisite power and authority to enter
into
and perform the transactions contemplated by the Purchase Documents to which
it
is a party, whether individually or as Purchaser.
7.2 Due
Authorization
.
The
execution, delivery and performance by Purchaser of this Agreement and the
other
Purchase Documents have been duly authorized by all necessary trust action
on
the part of WFB, do not require any approval of the shareholders of WFB (or
if
such approval is required, such approval has been obtained) or approval of
any
trustee or holder of any indebtedness or obligations of WFB or Purchaser, and
do
not and will not contravene the charter or by laws of WFB or any current law,
governmental rule, regulation, judgment or order of the State of Utah or of
the
United States of America governing WFB’s or Purchaser’s banking and trust powers
or contravene or result in a breach of, or constitute a default under any
indenture, mortgage, contract or other agreement to which WFB or Purchaser
is a
party or by which WFB or Purchaser or the property of either of them may be
bound or affected
17
7.3 Enforceability
.
Each of
the Purchase Documents to which it is a party has been duly executed and
delivered by Purchaser and constitutes the legal, valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency
or
other laws affecting creditors’ rights in general and principles of
equity.
7.4 Purchaser
Consents
.
Assuming the accuracy of the representations and warranties of Seller herein
and
in the Assignment Agreement, each consent of any Person (other than Lessee)
required to be obtained by Purchaser to authorize, or required by Purchaser
in
connection with the execution, delivery or performance by Purchaser of the
Purchase Documents to which it is a party has been obtained and is in full
force
and effect (or will be obtained and be in full force and effect prior to the
Delivery Time), and there is no default by Purchaser in the observance or
performance of any of the conditions and restrictions (if any) imposed on or
in
connection with such consent.
7.5 Non-Contravention
.
The
execution, delivery and performance by Purchaser of the Purchase Documents
to
which it is a party will not (i) conflict with, or result in any material
breach of any of the terms of, or constitute a default under any agreement
or
document to which it is a party or by which it or any of its property or assets
may be bound; or (ii) contravene or conflict with the provisions of its
organizational documents. Assuming the accuracy of the representations and
fulfillment of the covenants of Seller set forth herein and in the Assignment
Agreement, the transfer of the Aircraft and the Lease to Purchaser will not
violate any law of the State of Utah or of the United States of America
governing Purchaser’s banking and trust powers.
7.6 No
Litigation
.
No
action or proceeding is pending, has been instituted or, to the actual knowledge
of WFB or Purchaser, is threatened, before any court or Governmental Body,
and
no order, judgment or decree has been issued or, to the actual knowledge of
WFB
or Purchaser, is threatened, by any court or Governmental Body that would
materially adversely affect the ability of Purchaser to complete and consummate
its obligations contemplated by the Purchase Documents to which it is a
party.
7.7 No
Registration
.
Neither
the execution, delivery and performance by Seller of, nor the performance by
WFB
or Seller of their respective obligations under, the Purchase Documents requires
the consent, approval, order or authorization of, the giving of notice to,
the
registration with or the taking of any other action in respect of any
Governmental Body, other than the Uruguayan Filings.
18
SECTION
8. Notices
.
Seller
hereby covenants and agrees promptly to forward to Purchaser any notice it
receives from any party under the Transaction Documents (other than Purchaser)
pursuant to and in accordance with this Agreement. Purchaser hereby covenants
and agrees promptly to forward to Seller any notice either of them receives
from
any party to the Transaction Documents (other than Seller) pursuant to and
in
accordance with this Agreement related to the rights expressly reserved pursuant
to this Agreement or the Assignment Agreement.
SECTION
9. Further
Assurances
.
Each of
the Seller and Purchaser agrees, upon the reasonable request of the other party,
at any time and from time to time, promptly to execute and deliver all such
further documents, and promptly to take and forbear from all such action, as
may
be reasonably necessary or appropriate in order more effectively to confirm
or
carry out the provisions of the Purchase Documents and the other documents
entered into in connection therewith or to permit such party to enforce the
rights and benefits assigned to it or retained by it thereunder.
SECTION
10. Indemnification.
10.1 Indemnification
for Breach
.
Seller,
on the one hand, and Purchaser, on the other hand, agree to indemnify, on an
after-tax basis, defend and hold harmless the other and any of the other’s
officers, agents, directors and employees from and against any and all claims
(whether fraudulent, groundless, false or not), liabilities (including, without
limitation, absolute liability in tort), demands, suits, settlements,
obligations, damages, actions, losses and judgments, costs, disbursements,
fines, penalties and expenses (including, but not limited to, any reasonable
legal, accounting or investigative fees) of whatsoever kind or nature
(collectively, “Losses”)
that
result from (a) the untruthfulness of such indemnifying party’s
representations or warranties in this Agreement or any other Purchase Document
or in any certificate delivered by such indemnifying party pursuant to this
Agreement or (b) the breach by such indemnifying party of any of its
covenants or agreements contained in this Agreement or any other Purchase
Document.
10.2 Indemnification
Under the Transaction Documents
.
Seller,
on the one hand, and Purchaser, on the other hand, acknowledge that, in the
Transaction Documents, the owner of the Aircraft may be indemnified and insured
for various liabilities. Seller, on the one hand, and Purchaser, on the other
hand, agree that (as between them) each party hereto shall be entitled to
enforce and collect such indemnities and insurance directly from the indemnitor
or insurer to the extent arising from a loss suffered by such party because
of
its interest, or prior interest, as the case may be, as owner of the Aircraft.
If Seller is prohibited from enforcing any such indemnities or insurance for
its
benefit, Purchaser agrees that it will take (at Seller’s expense), to the extent
it can lawfully do so, any reasonable steps requested by Seller to enforce
such
indemnities or insurance on Seller’s behalf and pay to Seller any amount thereby
realized (to the extent such amount relates to a loss sustained by Seller and
not a reimbursement for a loss sustained by Purchaser); provided,
that
Purchaser shall have no duty to take any action that would be materially adverse
to its interests, including declaring an “Event
of Default”
under
the Lease. If Purchaser is prohibited from enforcing any such indemnities or
insurance for its benefit, Seller agrees that it will take (at Purchaser’s
expense), to the extent it can lawfully do so, any reasonable steps requested
by
Purchaser to enforce such indemnities or insurance on Purchaser’s behalf and pay
to Purchaser any amount thereby realized (to the extent such amount relates
to a
loss sustained by Purchaser and not a reimbursement for a loss sustained by
any
of the Seller); provided,
that
Seller shall not have any duty to take any action that would be materially
adverse to its interests. If Seller, on the one hand, or Purchaser, on the
other
hand, is unable to enforce any such indemnities or insurance for its benefit
as
a result of information needed from the other party, the other party agrees
that
it will take any reasonable steps or cause its Affiliates to take any reasonable
steps (in each case at the requesting party’s expense) requested by Seller, on
the one hand, and Purchaser, on the other hand, as the case may be, to provide
such information to the other party.
19
10.3 Seller’s
Indemnity
.
(a) Seller
hereby covenants, and agrees to indemnify, protect, defend, save and keep
harmless Purchaser, on an after-tax basis, from and against any and all Losses
which may at any time or from time to time be imposed upon, incurred by or
asserted against Purchaser or any of its Affiliates, agents, servants,
representatives, directors or officers in any way relating to, resulting from
or
arising out of: (i) any failure by Seller to have observed or performed any
of its obligations under or in connection with the Transaction Documents; or
(ii) Seller’s interest in the Aircraft and the Lease, in each case to the
extent attributable to the period prior to the Delivery Time.
(b) Seller
hereby covenants and agrees to indemnify, protect, defend, save and keep
harmless Purchaser, on an after-tax basis, from and against any and all Taxes
which at any time or from time to time may be imposed on or with respect to,
or
asserted against, Seller’s interest in the Aircraft or any part thereof or any
interest therein, on Purchaser, by any federal, state, local or foreign
government or taxing authority in connection with or relating to this Agreement,
the Assignment Agreement, Seller’s interest in the Aircraft and the Transaction
Documents, and which are attributable to the period prior to the Delivery Time,
or to acts, omissions, events or occurrences prior to the Delivery
Time.
10.4 Purchaser’s
Indemnity
.
(a)
Purchaser hereby covenants, and agrees to indemnify, protect, defend, save
and
keep harmless Seller, on an after-tax basis, from and against any and all Losses
which may at any time or from time to time be imposed upon, incurred by or
asserted against Seller or any of its Affiliates, agents, servants,
representatives, directors or officers in any way relating to, resulting from
or
arising out of: (i) any failure by Purchaser to have observed or performed
any of its obligations under or in connection with the Transaction Documents;
or
(ii) Purchaser’s interest in the Aircraft and the Lease, in each case to
the extent attributable to the period after the Delivery Time.
(b) Purchaser
hereby covenants and agrees to indemnity, protect, defend, save and keep
harmless Seller, on an after-tax basis, from and against any and all Taxes
which
at any time or from time to time may be imposed on or with respect to, or
asserted against the Aircraft or any part thereof or any interest therein,
on
Seller, by any federal, state, local or foreign government or taxing authority
in connection with or relating to this Agreement, the Assignment Agreement,
the
Aircraft and the Transaction Documents, and which are attributable to the period
after the Delivery Time, or to acts, omissions, events or occurrences after
the
Delivery Time.
20
SECTION
11. Notices.
11.1 Address
for Notices
.
All
notices required under the Purchase Documents shall be in writing and in
English, and shall be given or made in person, by internationally recognized
courier service or by telefax to Seller or Purchaser at their respective
addresses and telefax numbers as follows:
|
(a)
|
if
to Purchaser:
|
Xxxxx
Fargo Bank Northwest, National Association
|
| | |
MAC
U1228-120
|
| | |
000
Xxxxx Xxxx Xxxxxx
|
| | |
Xxxx
Xxxx Xxxx, XX 00000
|
| | |
Attention: Xxxxxxx
Xxxxxx
|
| | |
Telephone: x0-000-000-0000
|
| | |
Telefax: x0-000-000-0000
|
| | | |
| | |
with
a copy to:
|
| | | |
| | |
DB
Equipment Leasing, Inc.
|
| | |
00
Xxxx Xxxxxx
|
| | |
Xxx
Xxxx, Xxx Xxxx 00000
|
| | |
Attn:
Xxxxx Xxxxxxx
|
| | |
Telecopy:
(000) 000-0000
|
| | | |
|
(b)
|
if
to Seller:
|
PLM
Financial Services, Inc.
|
| | |
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
|
| | |
Xxx
Xxxx, XX 00000
|
| | |
Attention: Xxxxxxx
Xxxxx
|
| | |
Telephone: x0-000-000-0000
|
| | |
Telefax: x0-000-000-0000
|
11.2 Effectiveness
of Notice
.
Every
notice or demand shall be deemed to have been received (i) in the case of a
notice sent by recognized overnight international courier, when actually
delivered to Seller or Purchaser at its address set out in Section 11.1 or
as of the date on which receipt of such notice is refused or the courier advises
that such notice is not deliverable at the address set out in Section 11.1
with respect to Seller or Purchaser, as the case may be, and (ii) in the
case of a telefax, at the time of receipt by the sender of a transmission report
indicating that all pages of the telefax transmission were properly transmitted
(unless the recipient notifies the sender promptly, or if received after
5:30 p.m. local time, by no later than 10:00 a.m. local time the
following Business Day, that the transmission was incomplete or illegible,
in
which case the telefax shall be deemed to have been received at the time of
receipt by the sender of a further clear transmission report on retransmitting
the telefax) so long as the relevant telefax transmission (or retransmission,
as
the case may be) was transmitted to the receiver between 9:00 a.m. and
5:30 p.m. local time at the place of receipt, and if it was transmitted
other than between 9:00 a.m. and 5:30 p.m. local time then it shall be
deemed to have been received at 9:00 a.m. local time on the succeeding
Business Day.
21
11.3 Change
of Address
.
Seller
or Purchaser may change its address, telefax number or the address or party
to
whom copies of notices shall be sent by giving notice to the other in accordance
with this Section 11.
SECTION
12. Expenses
.
Each of
the Seller and Purchaser shall bear its own expenses incurred in connection
with
the Purchase Documents and the transactions contemplated by the Purchase
Documents. Seller shall pay all costs and expenses of Lessee, including all
fees
and disbursements of any counsel retained by Lessee, incurred in connection
with
the transfer of the Aircraft and Lease to Purchaser contemplated by the Purchase
Documents.
SECTION
13. Brokers
.
Each of
the Seller and Purchaser hereby represents and warrants to the other that it
has
not paid, agreed to pay or caused to be paid directly or indirectly in any
form,
any commission, percentage, contingent fee, brokerage or other similar payments
of any kind, in connection with the establishment or operation of this
Agreement, to any Person (other than fees payable by each party to its
respective legal advisers and any fees payable by Seller to Sigma Aircraft
Management LLC, for which Seller shall be solely responsible). Each of the
Seller and the Purchaser hereby agrees to indemnify and hold the other harmless
from and against any and all claims, suits, damages, costs and expenses
(including, but not limited to reasonable attorneys’ fees) asserted by any
agent, broker or other third party for any commission or compensation of any
nature whatsoever based upon this Agreement or the Purchase Documents or the
Aircraft and Lease, if such claim, suit, damage, cost or expense arises out
of
any breach by the indemnifying party, its employees or agents of the
representation of such indemnifying party set forth in this Section 13 or
out of any claim for such commission or compensation made by any Person against
or through such indemnifying party.
22
SECTION
14. Confidentiality
.
Neither
Purchaser or Seller will disclose, directly or indirectly, the economic terms
and conditions of this Agreement and the transactions related hereto and each
will use all reasonable efforts to have all such economic terms and conditions
kept confidential and not used in any way known to such party to be potentially
detrimental to any other party; provided, that (a) each party may use,
retain and disclose any such information to its counsel and public accountants,
any potential transferees and any Governmental Body requesting such disclosure;
provided that such counsel, public accountants and potential transferees shall
be advised to keep such information confidential, (b) each party may use,
retain and disclose any such information which has been publicly disclosed
(other than by such party or any Affiliate thereof in breach of this
Section 14), (c) to the extent that such party or any Affiliate
thereof may have received a subpoena or other written demand under color of
legal right for such information, such party or Affiliate may disclose such
information, but such party shall first, as soon as practicable upon receipt
of
such demand, furnish a copy thereof to the other party and afford the other
party reasonable opportunity to obtain a protective order or other reasonably
satisfactory assurance of confidential treatment for the information to the
extent necessary to enforce its rights against the other party pursuant to
this
Agreement. Upon completion of the transaction, either party can issue a press
release announcing the sale without disclosing any of the economic details
of
the transaction, and one or both of Seller’s owners may file SEC Form 8-K in
connection with the transactions contemplated by this Agreement.
SECTION
15. Miscellaneous.
15.1 Construction
.
This
Agreement shall, pursuant to Section 5-1401 of the New York General
Obligations Law, be governed by and construed in accordance with the laws of
the
State of New York.
15.2 Jurisdiction
.
Each of
the Seller and Purchaser hereby expressly submits to the non exclusive
jurisdiction of the United States District Court for the Southern District
of
New York and of the New York Supreme Court, New York County, in each case
located in the Borough of Manhattan (the “Agreed
Courts”).
Final
judgment against Seller or Purchaser rendered by any Agreed Court in any suit
shall be conclusive and may be enforced in any other jurisdiction by suit on
a
judgment, a certified or true copy of which shall be conclusive evidence of
the
facts and of the amount of any indebtedness or liability of such
party.
15.3 Waiver
of Objection to Venue
.
Each of
the Seller and Purchaser irrevocably waives any objection which it may now
or
hereafter have to the laying of venue of any suit, action or proceeding brought
in any Agreed Court and further irrevocably waives any claim that any such
suit,
action or proceeding brought in any Agreed Court has been brought in an
inconvenient forum.
15.4 Waiver
of Jury Trial
.
Each of
the Seller and Purchaser hereby waives trial by jury in any judicial proceeding
to which they are parties involving, directly or indirectly, any matter arising
out of or relating to the Purchase Documents.
15.5 Service
of Process by Mail
.
Without
prejudice to any other mode of service, each of Seller and Purchaser consents
to
the service of process relating to any proceedings involving, directly or
indirectly, any matter arising out of or relating to the Purchase Documents
by
U.S. Postal Service registered mail (prepaid, return receipt requested) of
a
copy of the process to the address for Seller or Purchaser, as the case may
be,
set forth in Section 11.1.
23
15.6 Successors
and Assigns
.
This
Agreement shall be binding upon and shall inure to the benefit of Seller and
Purchaser and their respective successors and permitted assigns. Neither Seller
or Purchaser may assign its rights or obligations under this Agreement in whole
or in part without the prior written consent of the other parties, which consent
shall not be unreasonably withheld.
15.7 Modification,
Amendments, Entire Agreement
.
The
Purchase Documents and their schedules and exhibits embody the entire agreement
and understanding of Seller and Purchaser. This Agreement shall not be modified
or amended except in writing signed by Seller and Purchaser and, as of the
date
first above written, terminates and supersedes all prior or independent
agreements and understandings between Seller and Purchaser covering the same
subject matter.
15.8 Third
Party Beneficiaries; Survival
.
This
Agreement is intended for the sole and exclusive benefit of the parties hereto
and does not create or confer any right or benefit to any person not a party
hereto. All representations, warranties, indemnities and agreements of Seller
and Purchaser under this Agreement shall survive the sale of the Aircraft on
the
Delivery Date
15.9 Counterparts
.
This
Agreement may be executed in counterparts, each of which shall constitute an
original document.
15.10 Trustees
.
It is
understood and agreed that, except as otherwise expressly provided herein or
in
any other Purchase Document or Transaction Document, each of PLM and WFB is
entering into this Agreement solely in its capacity as trustee as provided
in
the applicable trust agreement and not in its individual capacity and in no
case
whatsoever will either PLM or WFB be liable or accountable in its individual
capacity for any of the statements, representations, warranties, agreements
or
obligations of Seller or Purchaser, respectively, hereunder, or for any loss
in
respect thereof, as to all of which all interested parties agree to look solely
to the applicable trust estate; provided that nothing in this Section 15.10
shall be deemed to limit in scope or substance the personal liability of PLM
or
WFB (a) to the Owner Participants or the Beneficiary, respectively, as
expressly set forth in the applicable trust agreement, (b) in respect of
the representations, warranties and agreements of PLM or WFB expressly made
in
its individual capacity herein or in any other Purchase Document or Transaction
Document to which it is a party, (c) for the consequences of its own gross
negligence, willful misconduct and, in receiving, handling or remitting of
funds
only, its willful misconduct or simple negligence as a trustee, and
(d) taxes, fees or other charges on, or based on, or measured by, any fees,
commissions or compensation received by it in connection with the transactions
contemplated by the Purchase Documents
[signature
page follows]
24
IN
WITNESS WHEREOF, Seller and Purchaser have caused this
AIRCRAFT PURCHASE
AGREEMENT to be duly executed and delivered as of the day and year first written
above.
PLM
FINANCIAL SERVICES, INC., not in its individual capacity but solely as owner
trustee for the benefit of the Owner Participants
By:________________________________
Name:
Title:
XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not in its individual capacity
but
solely as owner trustee for the benefit of the Beneficiary
By:________________________________
Name:
Title:
25
SCHEDULE
1
PURCHASE
PRICE
|
Delivery
Date
|
Purchase
Price
|
Rent
Reduction
|
Int
on Purch Price
|
Int
on per diem rent
|
|
|
|
|
4%
|
4%
|
|
|
$8,200,000.00
|
|
|
|
|
15-Nov-06
|
$8,097,551.20
|
($102,448.80)
|
|
|
|
16-Nov-06
|
$8,098,461.84
|
($102,448.80)
|
$911.11
|
($0.47)
|
|
17-Nov-06
|
$8,099,372.00
|
($102,448.80)
|
$1,822.22
|
($1.42)
|
|
18-Nov-06
|
$8,100,281.69
|
($102,448.80)
|
$2,733.33
|
($2.85)
|
|
19-Nov-06
|
$8,101,190.90
|
($102,448.80)
|
$3,644.44
|
($4.74)
|
|
20-Nov-06
|
$8,102,099.64
|
($102,448.80)
|
$4,555.56
|
($7.11)
|
|
21-Nov-06
|
$8,103,007.91
|
($102,448.80)
|
$5,466.67
|
($9.96)
|
|
22-Nov-06
|
$8,103,915.70
|
($102,448.80)
|
$6,377.78
|
($13.28)
|
|
23-Nov-06
|
$8,104,823.01
|
($102,448.80)
|
$7,288.89
|
($17.07)
|
|
24-Nov-06
|
$8,105,729.86
|
($102,448.80)
|
$8,200.00
|
($21.34)
|
|
25-Nov-06
|
$8,106,636.22
|
($102,448.80)
|
$9,111.11
|
($26.09)
|
|
26-Nov-06
|
$8,107,542.12
|
($102,448.80)
|
$10,022.22
|
($31.30)
|
|
27-Nov-06
|
$8,108,447.54
|
($102,448.80)
|
$10,933.33
|
($37.00)
|
|
28-Nov-06
|
$8,109,352.48
|
($102,448.80)
|
$11,844.44
|
($43.16)
|
|
29-Nov-06
|
$8,110,256.95
|
($102,448.80)
|
$12,755.56
|
($49.80)
|
|
30-Nov-06
|
$8,111,160.95
|
($102,448.80)
|
$13,666.67
|
($56.92)
|
|
1-Dec-06
|
$8,112,064.47
|
($102,448.80)
|
$14,577.78
|
($64.50)
|
|
2-Dec-06
|
$8,112,967.52
|
($102,448.80)
|
$15,488.89
|
($72.57)
|
|
3-Dec-06
|
$8,113,870.09
|
($102,448.80)
|
$16,400.00
|
($81.11)
|
|
4-Dec-06
|
$8,114,772.19
|
($102,448.80)
|
$17,311.11
|
($90.12)
|
|
5-Dec-06
|
$8,115,673.82
|
($102,448.80)
|
$18,222.22
|
($99.60)
|
|
6-Dec-06
|
$8,116,574.97
|
($102,448.80)
|
$19,133.33
|
($109.56)
|
|
7-Dec-06
|
$8,117,475.65
|
($102,448.80)
|
$20,044.44
|
($120.00)
|
|
8-Dec-06
|
$8,118,375.85
|
($102,448.80)
|
$20,955.56
|
($130.91)
|
|
9-Dec-06
|
$8,119,275.58
|
($102,448.80)
|
$21,866.67
|
($142.29)
|
|
10-Dec-06
|
$8,120,174.83
|
($102,448.80)
|
$22,777.78
|
($154.15)
|
|
11-Dec-06
|
$7,993,012.61
|
($230,509.80)
|
$23,688.89
|
($166.48)
|
|
12-Dec-06
|
$7,993,910.91
|
($230,509.80)
|
$24,600.00
|
($179.29)
|
|
13-Dec-06
|
$7,994,808.75
|
($230,509.80)
|
$25,511.11
|
($192.57)
|
|
14-Dec-06
|
$7,995,706.10
|
($230,509.80)
|
$26,422.22
|
($206.32)
|
|
15-Dec-06
|
$7,996,602.98
|
($230,509.80)
|
$27,333.33
|
($220.55)
|
|
16-Dec-06
|
$7,997,499.39
|
($230,509.80)
|
$28,244.44
|
($235.25)
|
|
17-Dec-06
|
$7,998,395.33
|
($230,509.80)
|
$29,155.56
|
($250.43)
|
|
18-Dec-06
|
$7,999,290.78
|
($230,509.80)
|
$30,066.67
|
($266.08)
|
|
19-Dec-06
|
$8,000,185.77
|
($230,509.80)
|
$30,977.78
|
($282.21)
|
|
20-Dec-06
|
$8,001,080.28
|
($230,509.80)
|
$31,888.89
|
($298.81)
|
|
21-Dec-06
|
$8,001,974.32
|
($230,509.80)
|
$32,800.00
|
($315.88)
|
|
22-Dec-06
|
$8,002,867.88
|
($230,509.80)
|
$33,711.11
|
($333.43)
|
|
23-Dec-06
|
$8,003,760.97
|
($230,509.80)
|
$34,622.22
|
($351.46)
|
|
24-Dec-06
|
$8,004,653.58
|
($230,509.80)
|
$35,533.33
|
($369.95)
|
|
25-Dec-06
|
$8,005,545.72
|
($230,509.80)
|
$36,444.44
|
($388.93)
|
|
26-Dec-06
|
$8,006,437.38
|
($230,509.80)
|
$37,355.56
|
($408.37)
|
|
27-Dec-06
|
$8,007,328.57
|
($230,509.80)
|
$38,266.67
|
($428.29)
|
|
28-Dec-06
|
$8,008,219.29
|
($230,509.80)
|
$39,177.78
|
($448.69)
|
|
29-Dec-06
|
$8,009,109.53
|
($230,509.80)
|
$40,088.89
|
($469.56)
|
|
30-Dec-06
|
$8,009,999.30
|
($230,509.80)
|
$41,000.00
|
($490.90)
|
|
31-Dec-06
|
$8,010,888.59
|
($230,509.80)
|
$41,911.11
|
($512.72)
|
|
Delivery
Date:
|
00-Xxx-00
|
00-Xxx-00
|
00-Xxx-00
|
00-Xxx-00
|
|
|
|
|
|
|
|
Xxxxxxxx
Price
|
$8,006,437.38
|
$8,007,328.57
|
$8,008,219.29
|
$8,009,109.53
|
|
| | |
|
|
|
Less
Purchase Deposit
|
($100,000.00)
|
($100,000.00)
|
($100,000.00)
|
($100,000.00)
|
|
| | |
|
|
|
Adjusted
Purchase Price
|
$7,906,437.38
|
$7,907,328.57
|
$7,908,219.29
|
$7,909,109.53
|
|
| | |
|
|
|
Less
Lease Deposit and Accrued Interest
|
($345,287.74)
|
($345,331.16)
|
($345,374.58)
|
($345,418.00)
|
|
Less
Total Reserves
|
($1,937,069.39)
|
($1,937,069.39)
|
($1,937,069.39)
|
($1,937,069.39)
|
|
| | |
|
|
|
Net
Purchase Payment (1)
|
$5,624,080.26
|
$5,624,928.03
|
$5,625,775.32
|
$5,626,622.15
|
|
| | |
|
|
|
adjusted
for Technical
Holdback Amount……….
|
($50,000.00)
|
($50,000.00)
|
($50,000.00)
|
($50,000.00)
|
|
adjusted
for Withholding
Tax Escrow……….
|
($138,305.00)
|
($138,305.00)
|
($138,305.00)
|
($138,305.00)
|
|
| | | |
|
|
Net
Closing Date Payment……………………..
|
$5,435,775.26
|
$5,436,623.03
|
$5,437,470.32
|
$5,438,317.15
|
(1)
If
the following “Technical Holdback Conditions” have not been satisfied by the
Delivery Date, $50,000 (the “Technical
Holdback Amount”)
of the
Net Purchase Payment will be held in escrow pending their resolution and the
Purchase Price may be reduced by all or a portion of the Technical Holdback
Amount if the Technical Holdback Conditions have not been satisfied by January
15, 2007:
1. Hard
time
component listing for the Aircraft has been corrected to show the accurate
overhaul status of landing gear components, as tracked in calendar and hourly
intervals from the last overhauls, which were accomplished on 1 July 1998.
2. Inspection
status report “informe de inspecciones” for the Aircraft has been corrected to
show the last accomplished calendar date of D check, currently listed as
“unknown.”
26
SCHEDULE
2
MAINTENANCE
RESERVES
Account
Balances as of December 20, 2006
|
Account
Balances as of Closing Date
|
|
|
|
|
|
Sub-Accounts
|
Debit
Balance
|
Credit
Balance
|
|
Airframe
D-check
|
$907,301.88
|
|
|
ESN724644
Refurbishment
|
$385,219.40
|
|
|
ESN724644
LLPs
|
$316,888.83
|
|
|
ESN725657
Refurbishment
|
|
$714,510.44
|
|
ESN725657
LLPs
|
$785.00
|
$642,490.00
|
|
APU
|
$160,742.24
|
|
|
Landing
Gears
|
$166,132.04
|
|
|
|
|
|
|
TOTAL
|
$1,937,069.39
|
$1,357,000.44
|
|
|
|
|
27
SCHEDULE
3
TRANSACTION
DOCUMENTS
|
1.
|
Lease
Agreement, dated December 6, 2001, between PLM Transportation Equipment
Corporation, as predecessor to PLM Financial Services, Inc., not
in its
individual capacity but as owner trustee (“Lessor”)
and Pluna - Lineas Aereas Uruguayas S.A. (“Lessee”)
|
|
2.
|
Side
Letter Number One to Lease Agreement, made as of December 27, 2001,
between Lessor and Lessee
|
|
3.
|
First
Amendment to Lease Agreement, made as of January 15, 2002, between
Lessor
and Lessee
|
|
4.
|
Side
Letter Number Two to Lease Agreement, made as of July 11, 2002, between
Lessor and Lessee
|
|
5.
|
Second
Amendment to Lease Agreement, made as of December 23, 2003, between
Lessor
and Lessee
|
|
6.
|
Third
Amendment to Lease Agreement, made as of June 24, 2005, between Lessor
and
Lessee
|
|
7.
|
Letter
dated February 16, 2003 to Lessee from Sigma Aircraft Management
LLC, as
agent for Lessor
|
28
