AIRCRAFT SALE AGREEMENT dated ___ June 2007 between Pembroke Capital Aircraft (Shannon) Limited as Seller and AeroCentury Corp. as Purchaser in respect of One FOKKER model F.28 MK 0100 Aircraft Also described: In the FAA records as - F.28 MK 0100 In...
dated
___
June 2007
between
Pembroke
Capital Aircraft (Xxxxxxx) Limited
as
Seller
and
as
Purchaser
in
respect of
One
FOKKER model F.28 MK 0100 Aircraft
Also
described:
In
the FAA records as - F.28 MK 0100
In
the International Registry drop down menu as - FOKKER model F100
and
In
the International Registry by free text entry as - model
F28MK0100
and
In
the Type Certificate Data Sheet as - FOKKER model F.28 Xxxx
0100
MSN
11310
CONTENTS
| Clause |
Page
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|
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1.
|
Definitions and Interpretation |
3
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2.
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Sale and Purchase |
7
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3.
|
Payments |
7
|
|
4.
|
Delivery and Acceptance |
9
|
|
5.
|
Conditions Precedent - Seller |
11
|
|
6.
|
Conditions Precedent - Purchaser |
12
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7.
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Representations and Warranties of Seller |
14
|
|
8.
|
Representations and Warranties of Purchaser |
15
|
|
9.
|
Taxes |
17
|
|
10.
|
Warranties and Disclaimers |
17
|
|
11.
|
Indemnification |
18
|
|
12.
|
Insurance |
20
|
|
13.
|
Assignment/Transfer |
21
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14.
|
Confidentiality |
21
|
|
15.
|
Miscellaneous |
21
|
|
16.
|
Notices |
22
|
|
17.
|
Governing Law and Jurisdiction |
23
|
THIS
AIRCRAFT SALE AGREEMENT
is made
on ___ June 2007
between
|
(1)
|
Pembroke
Capital Aircraft (Xxxxxxx) Limited,
a
limited liability company incorporated under the laws of Ireland
and
having its principal place of business at Xxxxxxx Xxxxxxx Xxxxx,
Xxxxxxx,
Xx. Xxxxx, Xxxxxxx (the "Seller");
and
|
|
(2)
|
Aero
Century Corp.,
a
corporation incorporated under the laws of the State of Delaware,
United
States and having its principal place of business at 0000 Xxxxxx
Xxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000, XXX (the "Purchaser").
|
RECITAL
The
Seller has agreed to sell and the Purchaser has agreed to purchase the Aircraft
on the terms and conditions set out below.
NOW
IT IS AGREED
as
follows:
1. Definitions
and Interpretation
1.1 In
this
Agreement capitalized terms shall have the following meanings unless the
context
requires otherwise:
"Aircraft" means
the
FOKKER model F.28 MK 0100 Aircraft (also described: in the FAA records as
- F.28
MK 0100, in the International Registry drop down menu as - FOKKER model F100,
and in the International Registry by free text entry as - model F28MK0100
and in
the Type Certificate Data Sheet as - FOKKER model F.28 Xxxx 0100) more
particularly described in Schedule 1 and includes the Engines, Parts and
any
other items of equipment installed in, or furnished with, the Aircraft at
delivery of the Aircraft to Lessee under the Lease (excluding those items
of
equipment, furnishings and parts which have, or will have been installed
on the
Aircraft by Lessee on or prior to the Delivery Date and ownership of which
is
not required, pursuant to the provisions of the Lease, to vest in or be
transferred to the Seller but including those items of equipment, furnishings
and parts which have, or will have been removed from the Aircraft by Lessee
on
or prior to the Delivery Date and ownership of which is, pursuant to the
provisions of the Lease, vested in or required to be vested in the Seller)
and,
where the context permits, references to the Aircraft shall include the Aircraft
Documents;
"Aircraft
Documents"
has the
meaning given to it in the Lease and all records, manual and documentation
relating to the Aircraft that are in the possession of Lessor;
"APU
Maintenance Reserve Rate Compensation"
means
the compensation for loss of revenue during the term of the Lease as a result
of
Amendment No.1 to the Lease;
"Xxxx
of Sale"
means a
xxxx of sale from the Seller to the Purchaser substantially in the form of
Schedule 2;
"Business
Day" means
a
day, other than a Saturday or a Sunday, on which banks are open for business
in
Dublin, Ireland and San Francisco, California, USA;
"Cape
Town Convention"
means,
collectively, the Convention on International Interests in Mobile Equipment
and
the Protocol to the Convention on International Interests in Mobile Equipment
on
matters specific to Aircraft Equipment dated 16 November 2001;
"Claims"
has the
meaning given to it in Clause 11.1 of this Agreement;
"Default" has
the
meaning given to it in the Lease;
"Delivery" means
the
time at which the Purchaser shall obtain title to the Aircraft from the Seller
in accordance with this Agreement;
"Delivery
Date" means
the
date on which Delivery shall occur;
"Delivery
Location" means
a
location as agreed between Seller and Purchaser in accordance with Clause
9;
"Deposit"
the sum
of the First Instalment and the Second Instalment;
"Dollars" and
"US$"
means
the lawful currency for the time being of the United States of
America;
"Effective
Time"
has the
meaning ascribed to it in the Lease Novation;
"Effective
Time Notice"
has the
meaning ascribed to it in the Lease Novation;
"Engines" means
the
engines described in Schedule 1;
"Expected
Delivery Date"
means
on or about 27 or 28 June 2007 provided Lessee fully cooperates or such
other date as the parties may agree but in no event later than 04 July
2007;
"First
Instalment"
means
the sum of US$ 150,000.-;
"Governmental
Entity" includes
(i) any national government, political subdivision thereof or local jurisdiction
therein; (ii) any board, commission, department, division, organ,
instrumentality, court or agency of any thereof, however constituted; and
(iii)
any association, organisation or institution of which any thereof is a member
or
to whose jurisdiction any thereof is subject or in whose activities any thereof
is a participant;
"Inspection
Notice"
means
the notice received on 30 April, 2007 by Seller from Purchaser stating that
the
results of its inspection of the Aircraft are acceptable;
"International
Interest"
has the
meaning set forth in the Cape Town Convention;
"International
Registry"
means
the international registry established pursuant to the Cape Town
Convention;
"Law"
includes (i) any statute, decree, constitution, regulation, order or other
directive of any Governmental Entity; (ii) any treaty, pact, compact or other
agreement to which any Governmental Entity is a signatory or party; (iii)
any
judicial or administrative interpretation or application of any thereof;
and
(iv) any amendment or revision of any thereof;
"Lease"
means
the aircraft lease agreement dated 23 January 2007 between the Lessor,
the Lessee and the Lease Guarantor as amended from time to time;
"Lease
Documents"
has the
meaning given to it in the Lease Novation;
"Lease
Guarantor"
means
Bon Air Beleggings en Participatie Maatschappij N.V. (BBPM), a company
incorporated and existing under the laws of the Netherlands Antilles and
having
its principal place of business at Xxxx X.X. Xxxxxxxxx # 0, Xxxxxxx,
Xxxxxxxxxxx Antilles;
"Lease
Novation"
means
the Aircraft Lease Amendment and Novation Agreement to be entered into on
or
prior to the Delivery Date between the Lessor, the Purchaser, the Lessee
and the
Lease Guarantor in respect of the Lease and the Lessee Certificate of
Acceptance;
"Lessee"
means
Dutch Antilles Express B.V., a company incorporated and existing under the
laws
of the Netherlands Antilles and having its principal place of business at
Plasa
Xxxxxxx X.X. Xxxxxxxxx Z/N, Bonaire, Netherlands Antilles;
"Lessee
Certificate of Acceptance"
means
the Certificate of Acceptance dated 24 January 2007 delivered by the
Lessee to the Lessor under the Lease;
"Lessor"
means
Germania Fluggesellschaft mbH a company incorporated under the laws of the
Federal Republic of Germany and having its principal place of business at
Xxxxxxxxxxxx 00, 00000 Xxxxxx, Xxxxxxx;
"Lessor
Lien"
has the
meaning given to it in the Lease;
"Maintenance
Reserves"
has the
meaning given to it in the Lease;
"Material
Damage"
means
damage to the Aircraft, the cost of repair of which shall, in the reasonable
opinion of Fokker Services B.V. exceed US$ 500,000.-;
"Nationality
Registry"
means
the nationality registry in the Netherlands Antilles (as such registry is
established under The National Decree Supervision Aviation, as amended
(Landsbeluit
Toezicht Luchtvaart, PB
2003,
56))
(Nationaliteitsregister van de Nederlandse Antillen);
"Novated
Lease"
means
the Lease as novated and amended by the Lease Novation;
"Other
Aircraft"
means
the Fokker 100 aircraft with the manufacturer's serial number
11331;
"Part"
has the
meaning given to it in the Lease;
"Permitted
Lien"
has the
meaning given to it under the Lease.
"Purchase
Price"
means
US$ 6,320,000.-;
"Purchaser
Indemnitees"
means
the Purchaser and JetFleet Management Corp. and each Lender and including
any of
their respective affiliates, successors and assigns, shareholders, directors,
officers, servants, agents and employees;
"Rent"
has the
meaning given to it in the Lease;
"Second
Instalment"
means
the sum of US$ 300,000.-;
"Security
Deposit" has
the
meaning given to it in the Lease;
"Security
Interest" means
any
mortgage, charge, lien, pledge, encumbrance, hypothecation, lease, sublease,
security interest, judgment, writ, order, national or international interest,
or
right of possession of any kind whatsoever, however and wherever created
or
arising and whether or not consensual (including any arrangement or agreement
to
give or effect any of the foregoing and any conditional sale or other title
retention agreement);
"Seller
Indemnitees"
means
the Seller, Germania Express GmbH, Lessor, Deutsche Leasing AG, Deutsche
Sparkassen Leasing AG & Co. KG, Pembroke Capital Xxxxxxx Limited, and
including any of their respective affiliates, successors and assigns,
shareholders, directors, officers, servants, agents and employees;
"Taxes"
means
any and all present and future sales, use, personal property, customs, ad
valorem, value added, consumption, turnover, stamp, interest equalisation,
income, gross receipts or other taxes, fees, withholdings, imposts, duties,
deductions, levies or other charges of any nature together with any penalties,
fines or interest thereon, imposed, levied or assessed by, or otherwise payable
to, any Government Entity;
"Total
Loss"
has the
meaning given to it in the Lease; and
"Transaction
Documents" means
this Agreement, the Lease Novation, the Effective Time Notice, the Xxxx of
Sale
and all notices, consents, confirmations and certificates and other documents
related thereto and, in relation to a particular person, means such documents
as
that party has executed or is to execute.
1.2
(a) Clause
headings are for ease of reference only.
(b) References
in this Agreement to Clauses, paragraphs or Schedules are, unless otherwise
specified, to be construed as references to clauses, paragraphs of and Schedules
to this Agreement.
(c) References
in this Agreement to any statute or other legislative provision shall include
any statutory or legislative modification or re-enactment thereof, or any
substitution therefore and all regulations relating thereto, issued or
promulgated by a Government Entity.
(d) References
in this Agreement to "relevant
statutory provision"
shall
include references to any provision of the laws of any jurisdiction which
may
from time to time be applicable.
(e) References
in this Agreement to any agreement, document or instrument, except in clause
7.2
hereof, shall include such agreement, document or instrument as the same
may
from time to time be varied, amended, supplemented, novated or
substituted.
(f) References
in this Agreement to the word "person"
or
"persons"
include, without limitation, individuals, firms, corporations, government
agencies, authorities and other bodies, incorporated or unincorporated and
whether having distinct legal personality or not.
(g) References
in this Agreement to any party hereto or any person include references to
any
successor or permitted assign of such party or person.
(h) References
in this Agreement to the Aircraft include any part of the Aircraft, and,
where
the context so admits, any of the Aircraft Documents, and references to any
part
of the Aircraft include any part of any Engine.
(i) Unless
the context otherwise requires, words denoting the singular number shall
include
the plural and vice versa.
(j) Reference
in this Agreement to the word "written"
or
"in
writing"
shall
include any means of visible reproduction.
2. Sale
and Purchase
2.1 The
Seller agrees to sell to the Purchaser, and the Purchaser agrees to purchase
from the Seller, the Aircraft for the Purchase Price at the Delivery Location
on
the terms and conditions contained herein.
2.2 The
Seller agrees to cause Lessor to transfer the actual balance of the Security
Deposit and the Maintenance Reserves held by Lessor at Delivery and the Rent
received in respect of any period falling after Delivery to the Purchaser
on the
Delivery Date. Such transfer may be made by way of a set-off against the
Purchase Price.
3. Payments
3.1 The
Purchase Price shall be paid by the Purchaser to the Seller as
follows:
(a) the
First
Instalment prior to the date of this Agreement;
(b) the
Second Instalment upon execution of this Agreement; and
|
(c)
|
the
Purchase Price minus the Deposit and the APU Maintenance Reserve
Rate
Compensation amounting to US$ 44,587.39 on the Delivery Date (also
subject
to Clause 2.2 above)
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to
the
following bank account of Seller:
Correspondent
Bank: Bank
of New
York
Swift
Code: XXXXXX0X
ABA
No.: 000000000
Account
No.: 8900338067
For
Account of: Ulster
Bank Limited, Dublin
Swift
Code: XXXXXX0X
Account
Name: Pembroke
Capital Aircraft (Xxxxxxx) Limited
Account
No.: 1113316102
Reference: Aerocentury
MSN 11310
or
such
other bank account as Seller may advise in writing.
3.2 All
payments hereunder shall be made in Dollars and in immediately available
funds
so that the recipient receives credit for the full amount of such payment
on the
due date. All such payments shall be made in full without any deduction or
withholding (whether in respect of setoff (except as set forth in clause
2.2),
counterclaim, duties, Taxes imposed by any Governmental Entity, charges or
otherwise howsoever), unless the payer is prohibited by law from doing so,
in
which event the payer shall (i) ensure that the deduction or withholding
does
not exceed the minimum amount legally required; (ii) forthwith pay to the
recipient such additional amount as shall result in the net amount received
by
the recipient being equal to the amount which would have been received by
the
recipient had such a deduction or withholding not been made; (iii) pay to
the
relevant taxation or other authorities, within the period for payment permitted
by applicable law, the full amount of the deduction or withholding; and (iv)
upon request in writing from the recipient to the payer deliver to the recipient
receipts (if any) paid or payable in respect of any deduction or withholding
as
aforesaid.
3.3
|
(a)
|
Seller
and Purchaser acknowledge and agree that the Deposit (without any
interest) shall be refundable to Purchaser in the following
instances:
|
|
(i)
|
in
the event of termination of this Agreement under Clauses 4.1, 4.2
or 4.3
below;
|
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(ii)
|
in
the event that any of the Conditions Precedent to Purchaser's obligations
(as set forth in Clause 6 below) are not met prior to the Expected
Delivery Date Purchaser may terminate this Agreement by written
notice to
Seller and upon receipt of such notice Seller shall refund the
Deposit to
Purchaser;
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(iii)
|
in
the event that all conditions precedent to Seller's obligations
have been
met and Purchaser is ready, willing and able to proceed with sale
hereunder and Seller breaches its obligations to sell and deliver
the
Aircraft to Purchaser pursuant to the terms and conditions contained
in
this Agreement, Purchaser may terminate this Agreement by written
notice
to Seller and upon receipt of such notice Seller shall refund the
Deposit
to Purchaser.
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|
(b)
|
In
the event all conditions precedent to Purchaser's obligations have
been
met and Seller is ready, willing and able to proceed with the sale
hereunder and Purchaser breaches its obligations to purchase the
Aircraft
and pay the Purchase Price pursuant to the terms and conditions
contained
in this Agreement, Seller may terminate this Agreement by written
notice
to Purchaser and the Deposit may be retained by
Seller.
|
4. Delivery
and Acceptance
4.1 Immediately
prior to Delivery, Purchaser shall be entitled to a final inspection of the
Aircraft (the "Final
Inspection")
for
the purposes of verifying that no Material Damage or Total Loss of the Aircraft
has occurred since the issuance of the Inspection Notice. The Seller and
the
Purchaser shall use all reasonable endeavours to procure that Delivery occurs
on
the Expected Delivery Date while the Aircraft is at the Delivery Location
and at
such time as the parties may reasonably agree, or as soon after the Expected
Delivery Date as is reasonably possible and always subject to the terms and
conditions of this Agreement and in no event shall the Expected Delivery
Date
extend beyond 04 July 2007.
For
the
avoidance of doubt, if Delivery does not occur on or prior to the Expected
Delivery Date (and the parties have not agreed to amend such date to a later
date) each party shall have the right and option to terminate this Agreement
upon notice to the other, whereupon the Seller shall refund the Deposit (without
any interest) to Purchaser and thereafter, this Agreement shall terminate
and
neither party shall have any further rights or obligations hereunder other
than
survival of the parties' respective obligations under Clause 14 hereof. Further,
the provisions of Clause 4.4 shall not entitle the Seller to delay Delivery
until the date after the Expected Delivery Date.
4.2 If
the
Aircraft, prior to the sale and Delivery thereof to Purchaser, suffers a
Total
Loss, Seller shall notify the Purchaser thereof as soon as practicable and
refund the Deposit (without interest) to Purchaser. After receipt of such
notice
and refund of the Deposit to Purchaser, this Agreement shall terminate and
thereafter, neither party shall have any further rights or obligations (other
than the parties’ respective obligations under Clause14) hereunder.
4.3 If,
prior
to Delivery, the Aircraft suffers any damage for which the costs of the repair
exceeds $50,000.-, Seller will notify Purchaser thereof as soon as practicable
(after having been notified by Lessee in respect thereof) and Purchaser may
request the immediate evaluation of such damage by Fokker Services B.V. in
order
to determine whether or not Material Damage to the Aircraft has occurred.
If it
is determined by Fokker Services B.V. that Material Damage has occurred,
then
the cost of the evaluation shall be for the account of the Seller, and Purchaser
shall have the right to either, proceed with sale and delivery hereunder
(relying on the Lessee to effect repair in accordance with the Lease) or,
notify
Seller of Purchaser’s termination of this Agreement, and upon receipt of
Purchaser’s termination notice, Seller shall refund the Deposit (without
interest) to Purchaser and upon such refund and notice by Purchaser of such
termination, this Agreement shall terminate and thereafter, neither party
shall
have any further rights or obligations (other than the parties’ respective
obligations under Clause 14) hereunder. If the damage is determined not to
be
Material Damage, Purchaser, notwithstanding such damage, will accept and
purchase the Aircraft in accordance with the terms hereunder and the cost
of the
evaluation by Fokker Services B.V. shall be for the account of the
Purchaser.
4.4 The
Seller shall not be liable for or be deemed to be in breach of this Agreement
in
respect of any delay or failure in tendering the Aircraft on the Expected
Delivery Date if such delay or failure results from any occurrence that is
beyond the reasonable control of the Seller.
4.5 On
the
Delivery Date, subject to satisfaction or explicit waiver of the conditions
precedent set out in Clauses 5 and 6, the Purchaser shall pay to the Seller
the
Purchase Price and upon receipt by the Seller of the Purchase Price, the
Seller
and the Purchaser shall execute and deliver to the other party, the Xxxx
of Sale
and the parties shall make the Lease Novation effective. Effective as and
from
the Delivery, the Seller hereby consents to the Purchaser's registering the
sale
of the Aircraft as and International Interest, as described and defined in
the
Cape Town Convention, to be validly registered with, and searchable at, the
International Registry (including using all airframe model numbers noted
herein
in connection with such registration) and shall take such actions (including
without limitation becoming (or causing its counsel) to become a "transaction
user entity" with the International Registry and supplying its consent) as
is
reasonably required for such International Interest to be noted on the
International Registry.
4.6 As
between the Seller and the Purchaser, the risk of loss of, or damage to,
the
Aircraft shall pass from the Seller to the Purchaser upon delivery of the
Xxxx
of Sale by the Seller to the Purchaser.
4.7 The
Aircraft to be sold hereunder shall be delivered to the Purchaser "AS IS
WHERE
IS WITH ALL FAULTS" at the Delivery Location and SUBJECT
TO EACH AND EVERY DISCLAIMER OF WARRANTY AND REPRESENTATION AS SET FORTH
IN
CLAUSE 10.
Subject
to the foregoing provisions of Clause 4 and the due fulfilment or explicit
waiver of all the conditions precedent referred to in Clauses 5 and 6, the
Purchaser shall unconditionally accept the Aircraft for all purposes hereunder
at Delivery in the condition in which it exists at Delivery and shall execute
and deliver to Seller the countersigned Xxxx of Sale. Acceptance of the Aircraft
by the Purchaser at Delivery and execution by the Purchaser of the Xxxx of
Sale
shall constitute an acknowledgement by the Purchaser that the Aircraft is
in the
condition required by the provisions of this Agreement.
4.8 As
soon
as practicable after Delivery, Seller shall procure that Lessor, at Purchaser’s
risk, cost and expense, shall ship to a United States location to be specified
by Purchaser, all Aircraft Documents not in the possession of the Lessee
but in
the possession of Lessor at time of Delivery. Seller shall reimburse Purchaser's
reasonable costs and expenses of transportation in respect of such shipment
within 30 days after Seller's receipt of Purchaser's supported
invoice.
5. Conditions
Precedent - Seller
5.1 The
Seller’s obligation to sell the Aircraft hereunder is subject to the following
express conditions precedent on the Delivery Date:
(a) receipt
by the Seller of the Purchase Price, as provided for in Clause 4.5;
(b) receipt
by the Seller of a copy certified by an officer of the Purchaser to be a
true,
complete and up-to-date copy of the constitutive documents of the
Purchaser;
(c) receipt
by the Seller of a copy certified by an officer of the Purchaser, to be a
true,
complete and up-to-date copy of resolutions of the board of directors (or
other
appropriate governing body) of the Purchaser, which are in full force and
effect
and not amended or rescinded:
(i) approving
the terms of, and the transactions contemplated by the Transaction Documents;
and
(ii) authorising
a specified person or persons to sign and deliver on behalf of the Purchaser,
the Transaction Documents and any notices or other documents to be given
or
entered into
pursuant
thereto, and
(iii) a
specimen signature of each such person;
(d) the
representations and warranties of the Purchaser in Clause 8 of this Agreement
being true and correct on the Delivery Date as though such representations
and
warranties have been made as of the Delivery Date;
(e) the
Purchaser having complied with its material obligations under the Transaction
Documents required to have been performed at or before Delivery;
(f) receipt
by the Seller of the conditions precedent which it is entitled to receive
pursuant to Clause 5.4 of the Lease Novation;
(g) receipt
by the Seller of a letter from the Purchaser’s process agent in Germany
addressed to the Purchaser agreeing to act as the Purchaser’s process agent in
connection with the Transaction Documents;
(h) receipt
by the Seller of evidence reasonably satisfactory to the Seller demonstrating
that the insurances required to be effected pursuant to Clause 12 of this
Agreement have been effected;
(i) no
change
having occurred after the date of this Agreement in any applicable law which
would make it illegal for the Seller to perform any of its obligations under
this Agreement (and any other documents or agreements to be entered into
pursuant hereto), provided that if any such change has occurred, the parties
shall use all reasonable cooperative endeavours to restructure the transaction
contemplated by such documents so as to avoid the aforementioned
illegality;
(j) the
receipt by the Seller of the Lease Novation duly executed by the Lessor,
the
Lessee, the Lease Guarantor and the Purchaser and of the Effective Time Notice
(as defined in the Lease Novation) executed by the Purchaser, Lessee, Lease
Guarantor and the Lessor, held in escrow to the order of the
Purchaser;
(k) subject
always to Clause 4.2 and 4.3, no Total Loss or Material Damage having
occurred;
(l) the
receipt by the Seller of a tax opinion from Seller’s own tax counsel in respect
of the transaction set forth hereunder reasonably satisfactory by Seller;
and
(m) no
action, suits or proceedings or any governmental action shall have been
instituted or be threatened before any court or before or by any Governmental
Entity, nor shall any order, judgment or decree have been issued or proposed
to
be issued by any court or Governmental Entity, as of the Delivery Date,
questioning the validity or legality of this Agreement or the other Transaction
Documents or the transactions contemplated hereby or thereby or the ability
of
the parties hereto to consummate the transactions contemplated hereby or
thereby.
5.2 The
conditions precedent in Clause 5.1 are for the Seller’s benefit and may be
waived in writing, in whole or in part by the Seller.
6. Conditions
Precedent - Purchaser
6.1 The
Purchaser’s obligation to purchase the Aircraft hereunder is subject to the
following express conditions precedent on the Delivery Date:
(a) receipt
by the Purchaser of a copy certified by an officer of the Seller to be a
true,
complete and up-to-date copy of the constitutive documents of the
Seller;
(b) a
copy
certified by an officer of the Seller, to be a true, complete and up-to-date
copy of resolutions of the board of directors (or other appropriate governing
body) of the Seller, which are in full force and effect and not amended or
rescinded:
(i) approving
the terms of, and the transactions contemplated by the Transaction Documents;
and
(ii) authorising
a specified person or persons to sign and deliver on behalf of the Seller,
the
Transaction Documents and any notices or other documents to be given or entered
into
pursuant
thereto, and
(iii) a
specimen signature of each such person;
(c) the
representations and warranties of the Seller in Clause 7 of this Agreement
being
true and complete on the Delivery Date as though such representations and
warranties have been made as of the Delivery Date;
(d) the
Seller having complied with its material obligations under the Transaction
Documents required to have been performed at or before Delivery;
(e) the
confirmation on or before 30 April 2007 that Purchaser has completed the
First
Inspection of the Aircraft to its satisfaction;
(f) receipt
by the Purchaser of the conditions precedent set out in Clause 5.1 of the
Lease
Novation;
(g) receipt
by the Purchaser of a letter from the Seller’s process agent in Germany
addressed to the Seller agreeing to act as the Seller’s process agent in
connection with the
Transaction
Documents;
(h) no
change
having occurred after the date of this Agreement in any applicable law which
would make it illegal for the Purchaser to perform any of its obligations
under
this Agreement (and any other documents or agreements to be entered into
pursuant hereto), provided that if any such change has occurred the parties
shall use all reasonable cooperative endeavours to restructure the transaction
contemplated by such documents so as to avoid the aforementioned
illegality;
(i) receipt
by the Purchaser of the Lease Novation duly executed by the Lessee, Lease
Guarantor and the Lessor and of the Effective Time Notice (as defined in
the
Lease Novation) executed by the Lessor, Lease Guarantor and Lessee, held
in
escrow to the order of the Purchaser;
(j) receipt
by the Purchaser of tax and enforceability opinions from its own counsel
in
respect of the Transaction Documents and the transactions contemplated thereby
reasonably satisfactory by Purchaser;
(k) receipt
by the Purchaser of certified copies of the original Lease
Documents;
(l) subject
always to Clause 4.2 and Clause 4.3, no Total Loss or Material Damage having
occurred;
(m) no
action, suits or proceedings or any governmental action shall have been
instituted or be threatened before any court or before or by any governmental
agency, nor shall any order, judgment or decree have been issued or proposed
to
be issued by any court or governmental agency, as of the Delivery Date,
questioning the validity or legality of this Agreement or the other Transaction
Documents or the transactions contemplated hereby or thereby or the ability
of
the parties hereto to consummate the transactions contemplated hereby or
thereby;
(n) the
Lease
shall be in full force and effect and no Default shall have occurred and
be
continuing and no event shall have occurred and no condition shall be existing
which could reasonably be expected to materially adversely affect the Lessee’s
financial or business prospects, Lessee’s performance under the Lease and/or the
Purchaser's and its lender’s security position in the Aircraft;
(o) Prior
to
Delivery, Seller shall have established a valid and subsisting account with
the
International Registry as a transacting user entity and have appointed an
administrator and/or have consented to the appointment of a professional
user
reasonably acceptable to Purchaser;
(p) receipt
by the Purchaser of evidence of termination of any headlease existing prior
the
Effective Day; and
(q) receipt
by the Purchaser of copies of the bills of sale (from US Airways and through
any
intermediate owners) evidencing Seller's title to the Aircraft.
6.2 The
conditions precedent specified in Clause 6.1 are for the Purchaser’s benefit and
may be waived in writing, in whole or in part by the Purchaser.
7. Representations
and Warranties of Seller
7.1 The
Seller hereby represents and warrants, all such representations and warranties
being continuing, to the Purchaser, in each case in relation to itself only
and
in relation to the Transaction Documents to which it is a party only,
that:
(a) it
is a
limited liability company duly organised and legally existing under the laws
of
Ireland and has the power and authority to carry on its business as presently
conducted and to perform its obligations under, and execute and deliver,
each of
the Transaction Documents and each of the Transaction Documents has been
duly
authorised by all necessary corporate action on its part, and does not require
any approval, direct or indirect, of its shareholders or any approval or
consent
of any trustee or holder or holders of any of its indebtedness (or if such
approval is required, such approval has been obtained);
(b) each
of
the Transaction Documents has been duly entered into and delivered by it
and
upon due authorisation, execution and delivery by the other parties thereto
will
constitute its legal, valid and binding obligation enforceable against it
in
accordance with its terms except as enforcement may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganisation, moratorium
or
other similar laws affecting creditors’ rights generally, or by equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(c) neither
the execution and delivery of the Transaction Documents nor the consummation
of
the transactions contemplated thereby, nor the compliance by it with any
of the
terms and provisions thereof will contravene any law applicable to it or
any
order, writ, injunction or decree of any court or governmental agency or
instrumentality binding on it or result in any breach of, or constitute a
default under, or result in the creation of any lien, charge or encumbrance
upon
the Aircraft under any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, bank loan or credit agreement, corporate charter
or
by-laws, or other agreement, instrument or other undertaking to which it
is a
party or by which it or its properties or assets may be bound or
affected;
(d) the
execution, delivery and performance by it of the Transaction Documents and
any
of the transactions contemplated thereby do not require any consent, approval,
order, or
authorisation
of, or registration with, or the giving of prior notice to, any Governmental
Entity having jurisdiction with respect to the execution, delivery and
performance by it of the Transaction Documents or the validity and
enforceability thereof or the satisfaction of all monetary and other obligations
thereunder;
(e) it
is
subject to private commercial law and suit under the laws of its jurisdiction
of
incorporation, it is not entitled to sovereign immunity under the laws of
its
jurisdiction of incorporation, and neither it nor its properties or assets
have
any right of immunity from suit or execution on the grounds of sovereignty
in
its jurisdiction of incorporation;
(f) no
provision of the Transaction Documents is prohibited, unlawful or unenforceable
under the laws of its jurisdiction of incorporation except as enforcement
may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganisation, moratorium or other similar laws affecting creditors’ rights
generally, or by equitable principles (regardless of whether enforcement
is
sought in a proceeding in equity or at law);
(g) there
is
no investigation by any governmental agency or any action, suit, proceeding,
or
claim pending or, to its knowledge, threatened against it with respect to
the
Aircraft or any of the Transaction Documents which, if adversely determined,
would be likely to have a material adverse effect on its ability to comply
with
its obligations under any of the Transaction Documents, and it knows of no
basis
or ground for any such investigation, action, suit, proceeding or
claim;
(h) there
is
no outstanding order, lien, levy, distraint, writ, injunction or decree of
any
court, government or governmental agency against or affecting it directly
relating to the Aircraft or any of the Transaction Documents which is likely
to
have a material adverse effect on its ability to perform its obligations
under
any of the Transaction Documents; and
(i) at
Delivery, the Seller shall be the sole legal and beneficial owner of the
Aircraft and shall have good and marketable title to the Aircraft free and
clear
of any Security Interests whatsoever except for Permitted Liens, which term,
"Permitted Liens" shall not, in this context, include Lessor Liens; provided,
however, Seller shall have no responsibility for and does not warrant that
the
Aircraft is free of Lessor Liens created by Purchaser.
7.2 As
regards any of the Transaction Documents which have not been executed and
delivered on the date of this Agreement, the representations and warranties
set
out in Clause 7.1 shall apply with respect thereto once they have been executed
and delivered.
8. Representations
and Warranties of Purchaser
8.1 The
Purchaser represents and warrants, all such representations and warranties
being
continuing, to the Seller, in each case in relation to itself only and in
relation to the Transaction Documents to which it is a party only,
that:
(a) Purchaser
is a corporation duly organised and legally existing under the laws of Delaware,
United States of America and has the power and authority to carry on its
business as presently conducted and to perform its obligations under and
execute
and deliver each of the Transaction Documents and each of the Transaction
Documents has been duly authorised by all necessary corporate action on its
part, and do not require any approval, direct or indirect, of its shareholders
or any approval or consent of any trustee or holder or holders of any of
its
indebtedness (or if such approval is required, such approval has been
obtained);
(b) each
of
the Transaction Documents has been duly entered into and delivered by it
and
upon due authorisation, execution and delivery by the other parties thereto
will
constitute its legal, valid and binding obligation enforceable against it
in
accordance with its terms except as enforcement may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganisation, moratorium
or
other similar laws affecting creditors’ rights generally, or by equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(c) neither
the execution and delivery of the Transaction Documents nor the consummation
of
the transactions as contemplated thereby, nor compliance by it with any of
the
terms and provisions thereof will contravene any law applicable to it or
any
order, writ, injunction or decree of any court or governmental agency or
instrumentality binding on it or result in any breach of, or constitute a
default under any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, bank loan or credit agreement, corporate charter
or
bylaws or other agreement, instrument or other undertaking to which it is
a
party or by which it or its properties or assets may be bound or
affected;
(d) the
execution, delivery and performance by it of the Transaction Documents and
any
of the transactions contemplated thereby do not require any consent, approval,
order or authorisation of, or registration with, or the giving of prior notice
to any Governmental Entity having jurisdiction with respect to the execution,
delivery and performance by it of the Transaction Documents or the validity
and
enforceability thereof or the satisfaction of all monetary and other obligations
thereunder;
(e) it
is
subject to private commercial law and suit under the laws of the jurisdiction
of
its incorporation, it is not entitled to sovereign immunity under the laws
of
the jurisdiction of its incorporation and neither it nor its properties or
assets have the right of immunity from suit or execution on the grounds of
sovereignty in the jurisdiction of its incorporation;
(f) no
provision of the Transaction Documents is prohibited, unlawful or unenforceable
under the laws of the jurisdiction of its incorporation except as enforcement
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganisation, moratorium or other similar laws affecting creditors’ rights
generally, or by equitable principles (regardless of whether enforcement
is
sought in a proceeding in equity or at law);
(g) there
is
no investigation by any governmental agency or any action, suit, proceeding,
or
claim pending or, to its knowledge, threatened against it with respect to
the
Aircraft or any of the Transaction Documents which, if adversely determined,
would be likely to have a material adverse effect on its ability to comply
with
its obligations under any of the Transaction Documents, and it knows of no
basis
or ground for any such investigation, action, suit, proceeding or
claim;
(h) there
is
no outstanding order, writ, injunction or decree of any court, government
or
governmental agency against or affecting it directly relating to the Aircraft
or
any of the Transaction Documents which is likely to have a material adverse
effect on its ability to perform its obligations under any of the Transaction
Documents; and
(i) Purchaser
has a net worth of at least $5,000,000.-.
8.2 As
regards any of the Transaction Documents which have not been executed and
delivered on the date of this Agreement, the representations and warranties
set
out in Clause 8.1 shall apply with respect thereto once they have been executed
and delivered.
9. Taxes
The
Delivery Location shall be at
a
location to be mutually agreed upon by Purchaser and Seller having
due regard to any tax implications to which such location may give rise in
connection with the transactions contemplated by this Agreement, it being
the
intention that neither Purchaser nor Seller should suffer any sales, VAT
or
similar taxes in relation to the sale and purchase of the Aircraft.
10. Warranties
and Disclaimers
10.1 THE
AIRCRAFT WILL BE DELIVERED IN "AS
IS WHERE IS WITH ALL FAULTS"
CONDITION. THE SELLER MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS
(EXCEPT
AS STATED IN CLAUSE 7 OF THIS AGREEMENT AND THE XXXX OF SALE, WHICH EXCEPTION
APPLIES TO THE ENTIRETY HEREOF) NOR UNDERTAKES ANY OBLIGATION OR LIABILITY,
EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, IN EACH CASE WITH RESPECT
TO
THE AIRCRAFT INCLUDING BUT NOT LIMITED TO (1) ANY IMPLIED WARRANTY (A) AS
TO THE
DESCRIPTION, AIRWORTHINESS, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, VALUE,
CONDITION, DESIGN, USE OR OPERATION OF THE AIRCRAFT OR (B) ARISING FROM ANY
PART
PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE OR OTHERWISE, (2) ANY SUCH
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, AND (3) ANY SUCH
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO THE
AIRCRAFT, (A) FOR ANY LIABILITY OF ANY LESSEE OR ANY LESSOR TO ANY THIRD
PARTY,
(B) FOR ANY LIABILITY OF THE PURCHASER TO ANY THIRD PARTY, OR (C) FOR ANY
OTHER
DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; AND ALL SUCH WARRANTIES,
GUARANTEES, REPRESENTATIONS, OBLIGATIONS, LIABILITIES, RIGHTS, CLAIMS OR
REMEDIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARE EXPRESSLY EXCLUDED.
DELIVERY BY THE PURCHASER TO THE SELLER OF THE COUNTERSIGNED XXXX OF SALE
SHALL
CONSTITUTE CONFIRMATION BY THE PURCHASER THAT THE AIRCRAFT IS IN EVERY WAY
SATISFACTORY TO THE PURCHASER. EXCEPT
AS EXPRESSLY PROVIDED IN THE TRANSACTION DOCUMENTS, NEITHER THE SELLER NOR
THE
PURCHASER SHALL HAVE ANY LIABILITY TO EACH OTHER FOR ANY OBLIGATIONS OR
LIABILITIES OF THE LESSEE OR ANY OTHER THIRD PARTY.
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10.2
|
Seller
and Purchaser acknowledge and agree that Seller has conditionally
assigned
to Lessee under the Lease all effective warranties from manufacturers,
service providers or suppliers and that Purchaser shall be entitled
to the
rights of the "Lessor" under the Novated
Lease.
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11. Indemnification
11.1 The
Purchaser agrees to indemnify, reimburse and hold harmless each of the Seller
Indemnitees from and against any and all claims, including without limitation
claims made by Lessee under Clause 7.3 of the Lease proceedings, losses,
liabilities, suits, judgments, penalties or fines and any costs and expenses
in
connection therewith, including reasonable attorneys’ fees and expenses (any and
all of which are hereafter referred to as "Claims")
imposed on, incurred by or asserted against a Seller Indemnitee to the extent
arising out of the possession, delivery, performance, management, ownership,
registration, control, maintenance, condition, service, repair, overhaul,
leasing, use, operation or return of the Aircraft (collectively, the
"Use"
of the
Aircraft), subsequent to Delivery; provided, however, that the Purchaser
shall
be subrogated to all rights and remedies which such Seller Indemnitee may
have
against any third party, including manufacturer(s) of the Aircraft or previous
owner of the Aircraft or part thereof (other than such Seller Indemnitee)
or any
vendor, maintenance or modification facility which has done any work on the
Aircraft or part thereof.
11.2 The
Seller agrees to indemnify, reimburse and hold harmless each of the Purchaser
Indemnitees from and against any and all Claims imposed on, incurred by or
asserted against such Purchaser Indemnitee to the extent arising out of the
Use
of the Aircraft prior to Delivery, including, without limitation, (i) any
lien,
levy, distraint or encumbrance (including Eurocontrol charges) on, over or
relating to the Aircraft which were created, or existed prior to delivery
of the
Aircraft to Lessee under the Lease and with respect to which Lessee makes
any
claim against Lessor pursuant to Clause 7.3 of the Lease, and (ii) any Claim
made by Lessee against Purchaser arising out of Lessee’s rights under Clause 7.3
of the Lease.
11.3 Without
prejudice to the Purchaser’s liability under this Clause 11, the Purchaser
hereby agrees to indemnify, reimburse and hold the Seller Indemnitees harmless
from any Claims in any manner imposed upon, incurred by or asserted against
such
Seller Indemnitee to the extent arising out of facts or circumstances subsequent
to Delivery and made on the grounds that any design, article or material
in the
Aircraft or any part thereof or the manufacture, operation or use thereof
constitutes an infringement of patent, copyright, design, trademark or other
proprietary right or any other right whatsoever, save where such losses shall
have resulted from the actions of such Seller Indemnitee.
11.4 The
Purchaser shall have the right to assume and conduct promptly and diligently,
at
its sole cost and expense, the entire defence of any Seller Indemnitee against
any such Claim as is referred to in Clauses 11.1 or 11.3 without prejudice
to
the provisions of Clauses 11.1 or 11.3 and subject to the Seller Indemnitee
being indemnified and secured for the costs of any such action to its reasonable
satisfaction. The
Seller shall have the right to assume and conduct promptly and diligently,
at
its sole cost and expense, the entire defence of any Purchaser Indemnitee
against any such Claim as is referred to in Clauses 11.2 without prejudice
to
the provisions of Clauses 11.2 and 11.5 and subject to such Purchaser Indemnitee
being indemnified and secured for the costs of any such action to its reasonable
satisfaction.
11.5 Without
prejudice to the Seller's liability under this Clause 11, the Seller hereby
agrees to indemnify, reimburse and hold the Purchaser Indemnitees harmless
from
any Claims in any manner imposed upon, incurred by or asserted against such
Purchaser Indemnitee to the extent arising out of facts or circumstances
prior
to Delivery and made on the grounds that any design, article or material
in the
Aircraft or any part thereof or the manufacture, operation or use thereof
constitutes an infringement of patent, copyright, design, trademark or other
proprietary right or any other right whatsoever, save where such losses shall
have resulted from the actions of the Purchaser.
11.6 The
indemnities given by the Purchaser in this Clause 11 shall not extend to
Claims
relating to any Seller Indemnitee:
(a) arising
solely as a result of (or solely attributable to) the wilful misconduct,
recklessness or gross negligence of any of such Seller Indemnitee;
(b) arising
out of (or attributable to) a breach by the Seller (or Seller Indemnitee
which
is a party) of any of its material obligations (including its representations
and warranties not being true and correct in any material respect) under
the
Transaction Documents;
(c) arising
out of or attributable to an act, event, circumstance or omission that existed
or occurred prior to Delivery;
(d) arising
out of (or attributable to) Taxes or the imposition of Taxes; or,
(e) arising
out of (or attributable to) such Seller Indemnitee’s liability as a
manufacturer, service provider, or vendor (of maintenance or repair services)
of
or to the Aircraft or any part thereof.
11.7 The
indemnities given by the Seller in this Clause 11 shall not extend to Claims
relating to any Purchaser Indemnitee:
(a) arising
solely as a result of (or solely attributable to) the wilful misconduct,
recklessness or gross negligence of any Purchaser Indemnitee;
(b) arising
out of (or attributable to) a breach by the Purchaser (or Purchaser Indemnitee
which is a party) of any of its material obligations (including its
representations and warranties not being true and correct in any material
respect) under the Transaction Documents;
(c) arising
out of or attributable to an act, event, circumstance or omission that exists
or
occurs subsequent to Delivery; or
(d) arising
out of (or attributable to) Taxes or the imposition of Taxes.
|
11.8
|
With
respect to the obligation of Purchaser (as lessor under the Novated
Lease)
under Clause 11.3 of the Novated Lease, Seller hereby makes the
following
covenant and assurance to Purchaser: Seller shall procure that
each
Previous Party (as defined in the Novated Lease) which is an "Indemnitee"
under the Lease uses its reasonable endeavours to mitigate any
Claim (as
defined in the Lease) for which such Indemnitee may claim against
Lessee
pursuant to Clause 11.1 (of the Lease) or any other applicable
provision
of the Lease.
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|
11.9
|
The
Seller agrees to indemnify, defend and hold harmless the Purchaser
and its
successors and assigns from any and all liabilities, damages, losses,
expenses, demands, claims, suits or judgements by any third party
or
parties, including attorney fees, costs and expenses, which arise
out of
any claims or demands contrary to the warranties of Seller set
forth in
7.1 (i) hereunder.
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12. Insurance
12.1 The
Purchaser undertakes and agrees with the Seller that until the earlier of
(i)
the second anniversary of the Delivery Date and (ii) completion of the next
scheduled Major Check (as defined in the Lease) to occur after the Delivery
Date, the Purchaser will (i) procure that Lessee, so long as the Lease remains
in effect, maintains liability insurance policies in respect of the Aircraft
with the limit of coverage of such policy to be at least US$500,000,000.-
on
which the Seller Indemnitees shall be named as additional insureds, (ii)
with
respect to any subsequent lessee of the Aircraft during such period, procure
that such lessee maintains liability insurance policies in respect of the
Aircraft on which the Seller Indemnitees shall be named as additional insureds
with the limit of coverage of such policy to be equal to that on which
Purchaser, as lessor, is named additional insured, but in no event shall
any
such policy have limits less than US$350,000,000.-, and (iii) with respect
to
any off-lease period during which the Aircraft is not used in flight operation,
for any reason whatsoever, during such period, maintain liability insurance
policies in respect of the Aircraft on which the Seller Indemnitees shall
be
named additional insureds, with the limit of coverage and having such coverages
as Purchaser maintains with respect to its other off-lease aircraft in its
fleet, with such limit of coverage of such policy being no less than
US$100,000,000.-. In the event the Aircraft is used in flight operations
in any
off-lease period the requirement for liability insurances with minimum coverage
of US$ 350,000,000.- shall apply.
12.2 The
Purchaser further undertakes and agrees with the Seller that the Purchaser
shall, when requested by the Seller, produce to the Seller a certificate
or
other evidence as the Seller may reasonably require to show that the Purchaser
has complied with the obligations set forth in Clause 12.1 above and the
certificate shall contain provisions customary in the insurance market to
protect the interests of the Seller Indemnitees and a severability of interest
provision, all in terms reasonably satisfactory to the Seller. The Seller
acknowledges that any certificate including the provisions of AVN67B (or
its
equivalent) will be satisfactory to the Seller, for so long as AVN67B (or
its
equivalent) represents, at the relevant time in the international insurance
markets, best aviation insurance market practice.
13. Assignment/Transfer
No
party
shall assign, transfer or otherwise convey this Agreement, and all or any
part
of its rights or obligations hereunder to any person without the prior written
consent of the other party hereto.
14. Confidentiality
The
terms
and conditions of this Agreement are to be kept confidential by the Seller
and
the Purchaser and each party acknowledges that this Agreement contains
commercially sensitive information (collectively, the "Confidential
Information") and agrees that such Confidential Information will not be
disclosed by it without the prior written permission of each other party
except
to: (i) any permitted assignee or transferee of Purchaser or Seller, provided
such assignee agrees to be bound by the terms of this or other substantially
similar confidentiality clause, (ii) the extent necessary in connection with
the
enforcement of Seller’s or Purchaser’s rights or obligations hereunder, (iii)
the extent disclosure may be required by applicable law or legal process;
(iv)
the potential financiers of Purchaser and Seller’s existing financiers, provided
such potential or existing financiers agree to be bound by the terms of this
or
substantially similar confidentiality clause and (v) each party’s respective
boards of directors, employees, auditors, management companies and legal
or
technical advisors, in which case, the disclosing party shall cause such
person
to agree to be bound by the terms of this or substantially similar
confidentiality clause.
15. Miscellaneous
15.1 This
Agreement constitutes the entire agreement between the parties and supersedes
all previous statements, representations and agreements between the parties
relating to the subject matter of this Agreement.
15.2 No
delay
or omission by any party in exercising any right, power or remedy under this
Agreement shall impair such right, power or remedy or be construed as a waiver
thereof, nor shall any single or partial exercise of any such right, power
or
remedy preclude any further exercise thereof or the exercise of any other
right,
power or remedy. The rights, powers and remedies herein provided are cumulative
and not exclusive of any rights, powers and remedies provided by
Law.
15.3 No
amendment to this Agreement, including but not limited to this Clause 15.3,
shall be effective unless in writing and duly signed by all parties
hereto.
15.4 If
at any
time any one or more of the provisions in this Agreement is or becomes invalid,
illegal or unenforceable in any respect under any Law, the validity, legality
and enforceability of the remaining provisions of this Agreement shall not
be in
any way affected or impaired thereby.
15.5 Each
party shall pay its own legal and professional costs and expenses in respect
of
the negotiation, documentation and closing of the transactions contemplated
by
this Agreement, including, inter alia, the Purchaser paying its own costs
and
expenses associated with the inspection of the Aircraft. All costs and expenses
of the Lessee relating to the novation of the Lease shall be borne by Seller.
Costs in connection with the registration of the Purchaser’s and its financier’s
title in and to the Aircraft and the Novated Lease shall be for the account
of
the Purchaser.
15.6 Each
party undertakes to reasonably cooperate with the other to execute and deliver
any and all such other documents as may be reasonably requested by the other
party in order
to
effectuate the intent, purposes and terms of this Agreement.
16. Notices
16.1 Any
notice or other communication to be given under or for the purposes of this
Agreement shall be in writing and shall be treated as properly served or
given
if hand delivered or sent by international courier, registered post or legible
facsimile to the relevant person at the following address or facsimile number
(or such other address or facsimile number as that person may by notice
designate in writing from time to time to the person giving the
notice);
Seller: Pembroke
Capital Aircraft (Xxxxxxx) Limited
Address: Xxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx,
Xx. Xxxxx
Xxxxxxx
Telephone: +353
(61)
701-600
Facsimile
No: +353
(61)
474912
Attention: Xx.
Xxxx
XxXxxxxxx
Purchaser: AeroCentury
Corp.
Address: 0000
Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxxxxx 00000, XXX
Telephone: x0
000
000 0000
Facsimile
No: x0
000 000
0000
Attention: Xxxx
X.
Xxxxxxxx
16.2 Any
notice or other communication shall be deemed to have been received by the
recipient:
(a) in
the
case of a letter which is hand delivered, when actually delivered and, in
the
case of a letter which is sent by registered post, on the third day after
posting (or on actual receipt, if earlier); or
(b) in
the
case of transmission by legible facsimile, at the time of
transmission.
16.3 Each
person making a communication hereunder by facsimile shall promptly confirm
by
telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of
such
confirmation shall not affect the validity of any such
communication.
16.4 All
communications and documents delivered pursuant to or otherwise relating
to this
Agreement shall either be in English or accompanied by a certified English
translation prepared by a competent translator.
17. Governing
Law and Jurisdiction
17.1 This
Agreement is governed by and shall be construed in accordance with the laws
of
the Federal Republic of Germany.
17.2 The
parties irrevocably agree that the courts of Frankfurt am Main, Federal Republic
of Germany shall have exclusive jurisdiction to settle any disputes which
may
arise out of or in connection with this Agreement and that accordingly any
suit,
action or proceedings arising out of or in connection with this Agreement
("Proceedings")
may be
brought in such courts.
17.3 The
parties irrevocably waive any objection which they may have now or hereafter
to
the laying of any Proceedings in any such court as is referred to in Clause
17.2
and any claim that any Proceedings have been brought in an inconvenient forum
and further irrevocably agree that a judgement in any Proceedings brought
in any
court referred to in Clause 17.2 shall be conclusive and binding upon them
and
may be enforced in the courts of any other jurisdiction.
17.4 Each
of
the parties hereby consents generally in respect of any Proceedings arising
out
of or in connection with this Agreement to the giving of any relief or the
issue
of any process in connection with such Proceedings including, without
limitation, the making, enforcement or execution against any property whatsoever
(irrespective of its use or intended use) of any order or judgment which
may be
made or given in such Proceedings.
17.5 In
respect of any Proceedings between the parties arising out of or in connection
with this Agreement, the Purchaser hereby appoints:
Faegre
& Xxxxxx LLP
Main
Tower
Neue
Mainzer Xxxxxxx 00-00
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
Attention:
Executive Partner
to
receive notification as process agent on Purchaser’s behalf in Germany in
connection with any such Proceedings. In the event such process agent ceases
to
so act, the Purchaser will promptly appoint another person as process agent
and
inform Seller and Seller's process agent accordingly.
17.6 In
respect of any Proceedings between the parties arising out of or in connection
with this Agreement, the Seller hereby appoints:
Schierk
& Xxxxxxxxx
XxxxXxxxx
00,
00000
Xxxxxxx
Xxxxxxx
to
receive notification as process agent on Seller’s behalf in Germany in
connection with any such Proceedings. In the event such process agent ceases
to
so act, the Seller will promptly appoint another person as process agent
and
inform Purchaser and Purchaser's process agent accordingly.
|
17.7
|
The
parties hereto agree that a copy of any statement of claim ("Klageschrift")
sent to the courts of Frankfurt am Main, Germany, shall be sent,
on the
same day, to such other party named as defendant in that statement
of
claim at the address for notification set forth in Clause 16.1
hereof.
|
IN
WITNESS
whereof
the parties hereto have entered into this Agreement the day and year first
above
mentioned.
Schedule
1
Description
of Aircraft
Manufacturer: FOKKER
|
Aircraft
type:
|
One
FOKKER model F.28 MK 0100 Aircraft (also described: in the FAA
records as
- F.28 MK 0100, in the International Registry drop down menu as
- FOKKER
model F100, and in the International Registry by free text entry
as -
model F28MK0100 and in the Type Certificate Data Sheet as - FOKKER
model
F.28 Xxxx 0100)
|
Aircraft
serial number: 11310
Engine
manufacturer: ROLLS
ROYCE
|
Engine
type:
|
Rolls
Royce Xxx Xxxx 650-15 (also identified on the International Registry
drop
down menu as ROLLS ROYCE model
TAY650)
|
Engine
serial
numbers: 17346
and
17269
Landing
Gear
manufacturer:
Xxxxxxx-Xxxxx
Nose:
Part Number 201071001
Serial
Number: XC93037
LH
Main:
Part Number 201072013
Serial
Number: XC92954
RH
Main:
Part Number 201072014
Serial
Number: DLG-0211
APU
manufacturer:
Honeywell
Model:
GTCP
36-150RR
Serial
Number: P-253C
Schedule
2
Xxxx
of Sale
Pembroke
Capital Aircraft (Shannon) Limited, a company incorporated in Ireland, having
its registered office at Xxxxxxx Xxxxxxx Xxxxx, Xxxxxxx, Xx. Xxxxx, Xxxxxxx
(the
"Seller") is the owner of the full legal and beneficial title to the following
described aircraft and engines described below (hereinafter, collectively,
referred to as the "Aircraft"):
(1)
one
FOKKER model F.28 MK 0100 Aircraft (also described: in the FAA records as
- F.28
MK 0100, in the International Registry drop down menu as - FOKKER model F100,
and in the International Registry by free text entry as - model F28MK0100
and in
the Type Certificate Data Sheet as - FOKKER model F.28 Xxxx 0100) airframe
bearing manufacturer’s serial number 11310;
(2) two
Rolls
Royce Xxx Xxxx 650-15 (also identified on the International Registry
drop down
menu
as ROLLS ROYCE model TAY650) engines bearing the following manufacturer’s serial
numbers: 17346 and 17269;
(3)
all
appliances, parts, accessories, appurtenances, instruments, components and
other
items of equipment which are installed or incorporated in or on the aircraft
and
engines described in (1) and (2) above; and
(4) the
Aircraft Documents.
For
and
in consideration of the payment of the Purchase Price under the Aircraft
Sale
Agreement dated ___ June 2007 (the "Sale Agreement") between the Seller and
AeroCentury Corp., a United States, State of Delaware corporation, having
its
principal place of business at 0000 Xxxxxx Xxx. Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxxxx 00000, XXX (the "Purchaser"), the Seller hereby this ___________
day
of ___________ 2007 grants, conveys, transfers, assigns, bargains and sells,
delivers and sets over, all of the Seller's right, title and interest in
and to
the Aircraft, unto the Purchaser.
This
Xxxx
of Sale is first executed and delivered to the Purchaser by the Seller and
then
countersigned and delivered to the Seller by the Purchaser pursuant to the
terms
of the Sale Agreement and capitalized terms not otherwise defined herein
shall
be as defined in the Sale Agreement.
The
Seller hereby warrants to the Purchaser, its successors and assigns, that
there
is hereby conveyed to the Purchaser on
the date hereof,
all
legal and beneficial title, and good and marketable title to the Aircraft
free
and clear of any Security Interests whatsoever except for Permitted Liens
but
including, free and clear of any Lessor Liens; provided, however, Seller
shall
have no responsibility for and does not warrant that the Aircraft is free
of
Lessor Liens created by Purchaser. The Seller agrees with the Purchaser and
its
successors and assigns that Seller will warrant and defend such title forever
against all claims and demands whatsoever.
Seller
herewith transfers the title to the Aircraft to the Purchaser and Purchaser
accepts such transfer of title.
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused this instrument
to be
executed by their duly authorized officers this _______ day of _________
2007.
SIGNED
and DELIVERED
on
behalf
of
Pembroke
Capital Aircraft (Xxxxxxx) Limited
By: ____________________________
Name: ____________________________
Its: ____________________________
Accepted
and Agreed:
On
behalf
of
By: ____________________________
Name: ____________________________
Its: ____________________________
SIGNATURE
PAGE
MSN
11310
SIGNED
for and
on behalf of
Pembroke
Capital Aircraft (Xxxxxxx) Limited
By: ____________________________
Name: ____________________________
Its: ____________________________
SIGNED
for and
on behalf of
By: ____________________________
Name: ____________________________
Its: ____________________________
