AIRCRAFT 406
AIRCRAFT SALE AND PURCHASE AGREEMENT
THIS AIRCRAFT SALE AND PURCHASE AGREEMENT (this "Purchase
Agreement"), dated as of December 3, 2004, is by and among AeroCentury Corp., a
United States, State of Delaware corporation ("Purchaser") and UNI Airways
Corporation, a corporation organized under the laws of Taiwan ("Seller").
W I T N E S S E T H:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
the Aircraft (as defined below);
WHEREAS, contemporaneously with the purchase and sale of the Aircraft,
Purchaser and Seller will enter into a lease agreement whereunder Seller shall
lease the Aircraft from Purchaser;
WHEREAS, further contemporaneously with purchase, sale and lease of the
Aircraft, Purchaser shall purchase from, and lease back, to Seller the Other
Aircraft;
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
Section 1. Definitions. The following terms, when capitalized, shall
have the following meanings for all purposes of this Purchase Agreement, except
where the context otherwise requires and all other capitalized terms used
herein, but not otherwise defined herein, shall be as defined in the Lease, as
defined below:
"Aircraft" shall mean the Airframe, together with Engines,
Propellers, Landing Gear and APU each, as equipped with all Parts, equipment,
components and accessories installed therein or thereon, in each case, as more
fully described and defined in the Lease and all specifications and
descriptions of "Aircraft" "Airframe", "Engines", "Propellers", "Landing Gear",
"APU", and "Parts" leased thereunder and including all Aircraft Documents as
also defined in the Lease and notwithstanding any, more limited description of
the "Aircraft" under the Xxxx of Sale, the description of the "Aircraft" under
the Lease shall, without further notation in the Xxxx of Sale, be the
"Aircraft" conveyed under the Xxxx of Sale.
"Xxxx of Sale" shall mean the long form xxxx of sale pertaining to the
Aircraft in the form of Exhibit A hereto.
"CAA" shall mean the Civil Aeronautics Administration of Taiwan and any
and all other governmental unit, agency, office or department with authority
over the registration, operation, use, and airworthiness of civil aircraft
registered and operated in commercial passenger service in Taiwan. Under the
Lease, the CAA is referred to as the "Aviation Authority".
"Closing" shall mean the closing of the Aircraft purchase and sale and
simultaneous leasing transaction contemplated by this Purchase Agreement.
"Closing Date" shall mean the date of Closing as such term is defined
in Section 2(c) of this Purchase Agreement.
"Cross Receipt and Acceptance Certificate" shall mean the Cross Receipt
and Acceptance Certificate to be executed and delivered by Seller and Purchaser
on the Closing Date, in the form of Exhibit B attached hereto.
"Lease" means the Lease Agreement, dated of even date herewith,
between the Seller and the Purchaser relating to the Aircraft, as supplemented
and amended.
"Other Aircraft" means the de Havilland model DHC-8-311 aircraft
bearing manufacturer's serial number 407 and Taiwan registration number B-15229
to be purchased by Purchaser from, and leased back to, Seller on the same terms
and conditions as the Aircraft.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or agency or political subdivision thereof.
2. CLOSING OF PURCHASE AND SALE.
(a) Sale and Purchase. Subject to the terms and conditions set forth in
this Purchase Agreement, Seller agrees to sell and Purchaser agrees to purchase
the Aircraft on the Closing Date (as set forth in Section 2(c)).
(b) Purchase Price. The purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Aircraft shall be US$5,500,000. The
Purchaser shall retain US$247,500 of the Purchase Price as the "Security
Deposit" and US$82,500 for the first month's Rent, each to be paid by Lessee
under the Lease, and at Closing, Purchaser shall, by wire transfer of readily
available funds, wire the amount of US$5,170,000, to the following account:
The International Commercial Bank of China
Taipei Airport Branch
Account Name: UNI Airways Corporation
Account Number: 05553045704
Swift Code XXXXXXXX000
(c) Closing Date and Place. The closing of this purchase and sale shall
occur on or before, and no later than, Xxxxxxxx 0, 0000, 0000 (Xxxxxx, Xxxxxx
time, the evening of December 2, 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx time) or such
other date as mutually agreed by Purchaser and Seller (the "Closing Date"). The
Closing shall take place in the offices of Xxxxx & XxXxxxxx in Taipei, Taiwan
or such other location as is mutually agreeable to the parties.
3. CLOSING CONDITIONS AND PROCEDURES
(a) Conditions Precedent to Purchaser's Obligations. It shall be a
condition precedent to Purchaser's obligations to purchase the Aircraft as
contemplated hereunder that:
(i) the items to be delivered by Seller at Closing by
Seller under Section 3(c) shall have been delivered to Purchaser;
(ii) Seller shall have executed and delivered to
Purchaser the Operative Documents to which Seller is a party or which
are required to be delivered by Seller;
(iii) Purchaser shall have received:
(A) a copy of Seller's statutes, articles of
incorporation or association and other constituent documents certified
as of the Closing Date by a duly authorized officer of Seller as being
true, correct and current;
(B) a copy of the resolutions of the Board
of Directors of Seller certified as of the Closing Date by a duly
authorized officer of Seller duly authorizing execution, delivery
and performance by of this Purchase Agreement and all other
Operative Documents;
(C) an incumbency certificate as to the
person or persons authorized to execute and deliver this
Purchase Agreement on behalf of Seller and all documents, including all
Operative Documents, described herein required to be executed and
delivered by Seller hereunder; and
(D) a certificate of a duly authorized
officer of Lessee certifying that the Aircraft has not been
subject to total loss or any damage since Lessor's inspection thereof on
November 26, 2004;
(iv) Purchaser and the Financing Party shall have received
an opinion of Xxxxx & XxXxxxxx, Taiwan, in such form as Purchaser and
the Financing Party shall approve, covering the due authorization and
enforceability of the Operative Documents, the filing for registration
and recording of all pertinent Operative Documents and agreements under
Taiwan law (including with the CAA) as are contemplated by the Operative
Documents and covering such other matters as Purchaser and the Financing
Party deem relevant to the closing of the sale, purchase, lease and
finance of the Aircraft hereunder;
(v) Purchaser shall have received all other documentation
(including Seller's delivery of the CAA approval to the sale and lease
transaction contemplated hereby and any other third party consents)
reasonably necessary to consummate the transactions contemplated hereby
and reasonably required to evidence consummation of the transactions
contemplated by the Operative Documents, including without, limitation,
the sale and lease back of the Other Aircraft contemporaneously with
the sale hereunder and upon the same terms and conditions as the
Aircraft;
(vi) All conditions precedent to the obligations of Purchaser
(as "Lessor") under, and as set forth in the Lease shall have been met
to the reasonable satisfaction of Purchaser, including, without
limitation, that all filings with respect to Purchaser's ownership, the
Lease and the security interest of the Financing Party have been made
or shall be made contemporaneously with Closing and that the insurance
coverages required by the Lease shall be in full force and effect upon
Closing;
(vii) Purchaser shall have received reasonably satisfactory
evidence (in the form of a statement within the opinion of Xxxxx &
XxXxxxxx after review of all pertinent public records) of the absence
of any liens or encumbrances (recorded or otherwise) affecting or
pertaining to the Aircraft, Seller's title, and/or Seller's ability to
transfer good and marketable title to the Aircraft at Closing, free and
clear of any lien, claim or encumbrance whatsoever, or, if the claim of
any lender or secured party to Seller shall have or claim any such
interest, Purchaser and the Financing Party shall have received
reasonably satisfactory evidence (in the form of a statement within the
opinion of Xxxxx & XxXxxxxx) of the due and prompt release of any lien,
claim or encumbrance of any lender or secured party to the Seller upon
payment of the Purchase Price under this Purchase Agreement to such
lender or secured party;
(viii) Without limiting the obligation of Seller to pay and
indemnify the Purchaser for such taxes pursuant to this Purchase
Agreement and the Lease, the Purchaser shall be satisfied that, at the
time of the sale to Purchaser under this Purchase Agreement, the
Aircraft is located in a jurisdiction that will not cause any sale,
use, excise, transfer, gross receipts, value added or similar taxes,
fees or charges to be levied against the Purchaser under any applicable
law.
(ix) Purchaser shall have received such other corporate
certificates, instruments, agreements, documents and evidence as the
Purchaser or its counsel may reasonably request in order to establish
the consummation of the transactions contemplated by the Operative
Documents, the taking of all necessary corporate action in connection
therewith and compliance with the conditions set forth in this Purchase
Agreement and the Lease.
(b) Conditions Precedent to Seller's Obligations. It shall be a
condition precedent to Seller's obligations to consummate the
transactions contemplated hereunder that:
(i) the items to be delivered by Purchaser at Closing set
forth in Section 3(d) shall be delivered to Seller;
(ii) the Purchaser shall have executed and delivered the
Operative Documents to which Purchaser is a party or which are required
to be delivered by Purchaser;
(iii) Seller shall have received:
(A) a copy of the Purchaser's statutes,
articles of incorporation or association and other constituent documents
certified as of the Closing Date by a duly authorized officer of
Purchaser as being true, correct and current;
(B) a copy of the resolutions of the Board
of Directors of Purchaser certified as of the Closing
Date by a duly authorized officer of Purchaser duly authorizing
execution, delivery and performance by of this Purchase Agreement and
all other Operative Documents;
(C) an incumbency certificate as to the
person or persons authorized to execute and deliver this
Purchase Agreement on behalf of Purchaser and all documents, including
all Operative Documents, described herein required to be executed and
delivered by Purchaser hereunder;
(vi) Seller shall have received all other documentation
(including CAA approval of the sale and lease transaction contemplated
hereby and any other third party consents) reasonably necessary to
consummate the transactions contemplated by the Operative Documents.
(c) Seller's Deliveries at Closing. Subject to the terms and
conditions hereof, at the time of Closing, the Seller shall deliver the
following documents to Purchaser:
(i) the Xxxx of Sale for the Aircraft in the form of Exhibit
A, duly executed by Seller;
(ii) the Cross Receipt and Acceptance Certificate with respect
to the Aircraft in the form of Exhibit B, duly executed by Seller;
(iii) the Lease, together with all documents required to be
executed and delivered to Purchaser thereunder and hereunder, all, as
applicable, duly executed by Seller;
(iv) an opinion of the in-house legal counsel to Seller, in
such form as Xxxxx & XxXxxxxx shall approve and require, as may be
necessary to support the legal opinions to be issued to Purchaser and
the Financing Party by such firm as contemplated by the Operative
Documents;
(v) such other instruments, certificates and documents which,
in the reasonable opinion of Purchaser, the Financing Party and their
respective counsel, need to be executed and delivered by Seller on or
before the Closing Date in order to consummate the transactions
contemplated hereby, including, without limitation, that formalities of
notarization and legalization of all documents requiring the same, have
been notarized and legalized.
(d) Purchaser's Deliveries at Closing. Subject to the terms and
conditions hereof, at the time of Closing, Purchaser shall deliver the following
to Seller:
(i) The Purchase Price for the Aircraft in the amount
specified in Section 2(b) hereof in the manner specified thereby;
(ii) Cross Receipt and Acceptance Certificate in respect to
the Aircraft in the form of Exhibit B, duly executed by Purchaser;
(iv) the Lease, together with all documents required to be
executed and delivered to Seller thereunder and hereunder, all duly
executed by Purchaser;
(iii) such other instruments, certificates and documents as
needed, in the reasonable opinion of Seller, to be executed and
delivered in order to consummate the transactions contemplated hereby.
(e) Delivery and Acceptance; Risk of Loss.
(i) Seller, as "Lessee", and Purchaser as "Lessor", shall,
contemporaneously with the Closing, enter into the Lease with each
other. Upon the Closing of the purchase and sale, Seller shall (i)
cause all the conditions specified in the Lease to be fully satisfied;
and (ii) accept delivery of the Aircraft under the Lease in accordance
with the terms of the Lease. Such a delivery to Seller shall be deemed
to be delivery of the Aircraft to Purchaser hereunder; provided,
however, that Purchaser shall not be obligated to purchase the Aircraft
and shall not be deemed to have accepted delivery of the Aircraft,
if there shall then exist an "Event of Default" or "Event of Loss" (as
such terms are defined in the Lease) or event which, with the passage
of time, would become an Event of Default or Event of Loss with respect
to the Aircraft.
(ii) Title and risk of loss to the Aircraft shall pass from
Seller to Purchaser under this Purchase Agreement upon payment of the
Purchase Price by Purchaser to Seller and the simultaneous delivery by
Seller to Purchaser of the Xxxx of Sale, each to occur at the time of
Closing.
(iii) If the Aircraft is destroyed or has been damaged in any
way after inspection by Lessor on November 26, 2004 and before Closing,
Seller shall notify Purchaser thereof and upon receipt of such notice,
this Purchase Agreement shall terminate without further act of either
party and, at the option of Purchaser, upon notice to Seller, the
purchase agreement for the Other Aircraft shall terminate and
thereafter, neither party shall have any further rights or obligations
with respect to, the purchase of the Aircraft and, if elected by
Purchaser, the purchase of the Other Aircraft.
Section 4. No Express or Implied Warranties
(a) With respect to the Aircraft, Purchaser acknowledges that:
EXCEPT FOR THE WARRANTY OF TITLE TO THE AIRCRAFT AS SET FORTH IN SECTION
5(b)(v) HEREOF AND IN THE XXXX OF SALE AND THE OTHER REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 5(b) HEREOF, SELLER HAS NOT MADE ANY
REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE,
RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS PURCHASE AGREEMENT. THE
AIRCRAFT IS BEING ACQUIRED BY PURCHASER ON AN "AS IS, WHERE IS AND WITH ALL
FAULTS" BASIS.
Section 5. Representations and Warranties.
(a) Representations and Warranties - Purchaser. Purchaser represents
and warrants to Seller upon execution hereof and at Closing that:
(i) Purchaser is a corporation duly organized and validly
existing under the laws of the State of Delaware, United States of
America, and it has the power and authority to own its assets and carry
on its business as presently carried on;
(ii) the execution, delivery and performance of the Operative
Documents to which it is a party and the consummation of the
transactions contemplated thereby have been (or by Closing will have
been) duly authorized by all necessary action of Purchaser;
(iii) assuming the validity of execution and delivery by any
other parties other than the Purchaser, the Operative Documents when
executed and delivered by Purchaser constitute or will constitute
legal, valid and binding obligations of Purchaser and enforceable in
accordance with their respective terms except to the extent that such
enforceability may be limited by bankruptcy, insolvency or similar laws
respecting creditors' rights generally;
(iv) the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, the Operative
Documents to which Purchaser is a party will in no way exceed the
powers granted to Purchaser, or violate in any respect any provision
of, or cause a breach or default of:
(A) any law or regulation or any order or decree of any
governmental authority, agency or court or generally accepted
interpretation thereof or any judgment, decree or permit to which
Purchaser is subject; and
(B) any resolution of the directors or shareholder of
Purchaser; or any mortgage, charge, deed, contract or other undertaking
or instrument of Purchaser;
(vi) there are no pending or, to the knowledge of Purchaser,
threatened actions, or proceedings against, as the case may, be, before
any court, arbitrator or administrative agency which, if adversely
determined, would materially adversely affect the ability of Purchaser
to perform its obligations under this Purchase Agreement or any of the
other Operative Documents to which it is a party on the Closing Date.
(b) Representations and Warranties - Seller. Seller represents and
warrants to Purchaser upon the execution hereof and at Closing that:
(i) Seller is a corporation duly organized and validly existing under
the laws of the country of Taiwan, and it has the power and authority
to own its assets and carry on its business as presently carried on;
(ii) the execution, delivery and performance of the Operative Documents
to which it is a party and the consummation of the transactions
contemplated thereby have been (or by Closing will have been) duly
authorized by all necessary action of Seller;
(iii) assuming the validity of execution and delivery by any other
parties other than the Purchaser, the Operative Documents when executed
and delivered by Purchaser constitute or will constitute legal, valid
and binding obligations of Seller and enforceable in accordance with
their respective terms except to the extent that such enforceability
may be limited by bankruptcy, insolvency or similar laws respecting
creditors' rights generally;
(iv) the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, the Operative Documents
to which Seller is a party will in no way exceed the powers granted to
Purchaser, or violate in any respect any provision of, or cause a
breach or default of:
(A) any law or regulation or any order or decree of any
governmental authority, agency or court or generally accepted
interpretation thereof or any judgment, decree or permit to which
Seller is subject; or
(B) the Articles of Incorporation of Seller or any resolution
of the directors or shareholders of Seller; or any mortgage, charge,
deed, contract or other undertaking or instrument of Seller;
(v) Seller is, and at the time of Closing shall be, the legal
and beneficial owner of the Aircraft, and upon the Closing, Seller
shall convey good and valid title to the Aircraft, free and clear of
any claims, liens, security interests, encumbrances or rights of others
of any nature whatsoever (except for any lien of the Financing Party)
and Seller will warrant and defend such title forever against all
claims and demands;
(vi) there are no pending or, to the knowledge of Seller,
threatened actions, or proceedings against, as the case may, be, before
any court, arbitrator or administrative agency which, if adversely
determined, would materially adversely affect the ability of Seller to
perform its obligations under this Purchase Agreement or any of the
other Operative Documents to which it is a party on the Closing Date.
Section 6.Additional Covenants and Agreements of Seller and Purchaser.
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(a) Effective at Closing, Seller shall and does hereby assign,
transfer and set over to Purchaser, any and all warranties, service life
policies, product support agreements and guaranties of manufacturers and
maintenance, supply and overhaul facilities pertaining to the Aircraft, and any
and all equipment associated therewith, if and to the full extent the same are
assignable and transferable. Upon request of Purchaser, Seller shall give
Purchaser all assistance in enforcing the rights of Purchaser (in the name of
Seller or otherwise) arising under such warranties; and from time to time, upon
the request of Purchaser, Seller shall give notice to any such manufacturers
and maintenance, supply and overhaul facilities of the foregoing assignment to
Purchaser.
(b) Seller agrees to indemnify, reimburse and hold harmless Purchaser
and its shareholders, directors, servants, agents, employees, subcontractors,
successors and assigns, from and against any and all claims, damages, losses,
liabilities, demands, suits, judgments, causes of action, legal proceedings,
whether civil or criminal, penalties, fines, other sanctions, and any costs and
expenses in connection therewith, including costs of investigation and
attorney's fees and expenses, which may result from or arise in any manner out
of, or in relation to breach or default of Seller's representations and
warranties contained in the Operative Documents, including, without limitation,
breach of Seller's warranty of title.
(c) Seller shall be responsible for and shall indemnify, defend and
hold Purchaser and its shareholders, directors, servants, agents, employees,
subcontractors, successors and assigns, harmless, on demand, and on an
after-tax basis, from and against all taxes assessed by any governmental
entity, agency or instrumentality of any country (excluding the United States),
whether state or federal, in connection with the sale of the Aircraft to
Purchaser For purposes of this Purchase Agreement, the term "taxes" shall mean
all taxes, levies, imposts, duties, withholdings, or charges of similar nature,
including, without limitation, any corporation, capital gains, income, gross
receipts, franchise, transfer, sales, use, ad valorem, business, occupation,
personal property, stamp, document or other taxes whatsoever imposed by any
national local taxing or fiscal authority or agency, together with interest
thereon and penalties in respect thereof, and "taxation" shall be construed
accordingly.
(d) Purchaser agrees to indemnify, reimburse and hold harmless Seller
and its shareholders, directors, servants, agents, employees, subcontractors,
successors and assigns, from and against any and all claims, damages, losses,
liabilities, demands, suits, judgments, causes of action, legal proceedings,
whether civil or criminal, penalties, fines, other sanctions, and any costs and
expenses in connection therewith, including costs of investigation and
attorney's fees and expenses, which may result from or arise in any manner out
of, or in relation to breach or default of Purchaser's representations and
warranties contained in the Operative Documents.
(e) The indemnities set forth in this Section 6 shall survive the
closing of the purchase and sale transaction set forth in this Purchase
Agreement.
Section 7. Transaction Costs.
Except as otherwise expressly stated in this Purchase Agreement or the other
Operative Documents, each party shall be responsible for its own expenses (and
that of its respective counsel) incurred in connection with the negotiation,
preparation and execution of the Operative Documents and consummation of the
sale and lease transaction contemplated hereby; provided, however, Seller shall
bear the fees ,costs and expenses incurred by Purchaser in retaining Xxxxx &
XxXxxxxx, as Taiwan counsel to Purchaser and the Financing Party and in making
all Taiwan filings, registrations and recordings of Lessor's ownership of the
Aircraft, the Lease and any mortgage of the Financing Party and obtaining legal
opinions related thereto and related to matters such as taxation and enforcement
in Taiwan.
Section 8. RESERVED
Section 9. Miscellaneous.
(a) Notices. All notices required or permitted hereunder shall be in
writing and may be either personally delivered, faxed, telexed or sent by a
reputable international courier service addressed as follows:
If to Purchaser:
AeroCentury Corp.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX, 00000
Attn: Chief Operating Officer
Fax: (000) 000-0000
Telephone: (000) 000-0000
If to Seller:
UNI Airways Corporation
0X, Xx. 000
Xxxxx-Xx X. Xx. Xxx.0
Xxxxxx 000
Xxxxxx
Attn: Chairman and President
Fax: 000 0 000 00000
Telephone: 000 0 000 00000
or at such other address as either party gives to the other from time to time
through proper notice. Any such notice shall be effective and shall be deemed
to have been given when received at the addresses set forth above, as such
addresses are modified as set forth above.
(b) Nonwaiver; Remedies Cumulative. No covenant or condition of this
Purchase Agreement can be waived except by the written consent of the party to
be charged with such waiver. Forbearance or indulgence by any party in any
regard whatsoever shall not constitute a waiver of the covenant or condition to
which such forbearance or indulgence may relate, and until complete performance
thereof, or the written waiver thereof, the forbearing or indulging party shall
be entitled to invoke any remedy available to it under this Purchase Agreement
or by law or in equity or otherwise despite such forbearance or indulgence. No
right or remedy of any party provided for herein is exclusive of any other
right or remedy, but all such rights and remedies are cumulative of every other
right and remedy provided for herein, at law, in equity, by statute, or
otherwise, and may be exercised concurrently or separately from time to time.
The prevailing party shall be entitled to attorney's fees and forum costs.
(d) Applicable Law. This Purchase Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of
California (without regard to any conflicts of law rule which might result in
the application of the laws of any other jurisdiction), including all matters
of construction, validity and performance.
(e) Severability. Any provision of this Purchase Agreement which may
be prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability in such jurisdiction only,
without invalidating the remaining provisions hereof in such jurisdiction and
without invalidating any of the provisions hereof in any other jurisdiction.
(f) Waiver of Jury Trial. BY ITS SIGNATURE BELOW WRITTEN EACH
PARTY HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS PURCHASE AGREEMENT OR RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY
RELIED ON THE WAIVER IN ENTERING INTO THIS PURCHASE AGREEMENT AND THAT EACH WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
HERETO FURTHER WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER WITH
ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS PURCHASE AGREEMENT, ANY OPERATIVE DOCUMENT, OR ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION. IN THE EVENT OF LITIGATION, THIS
PURCHASE AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(g) Consent to Jurisdiction. Each of Purchaser and Seller irrevocably
agrees that any legal action or proceedings arising out of or in connection
with this Purchase Agreement may be brought in any California State court
sitting in the County of San Mateo or Federal Court for the Northern District
of California, which shall have the exclusive jurisdiction to settle any
disputes arising out of or in connection with this Purchase Agreement and
irrevocably and unconditionally submits to the exclusive jurisdiction of such
courts. Each of Purchaser and Seller irrevocably waives any objection it may
now or hereafter have to the laying of venue of any action or proceeding in any
court and any claim it may now or hereafter have that any action or proceeding
has been brought in an inconvenient forum.
(h) Further Assurances. Purchaser and Seller will promptly, at any
time and from time to time, execute and deliver to each other, such further
instruments and documents, and take such further action, as Purchaser and
Seller, as the case may be, may from time to time reasonably request and which
is necessary to carry out this Purchase Agreement and to establish and protect
the rights, interests, and remedies created in favor of Purchaser and Seller.
(i) Exclusivity. This Purchase Agreement is the complete and exclusive
statement of the parties hereto with respect to the subject matter hereof and
supersedes all prior oral and written communications, proposals, agreements,
representations, statements, negotiations and undertakings between the parties
hereto with respect to the subject matter hereof.
(j) No Broker. Except for the services of Xxxxxx Xxxxx and Plane
Trading Limited, whose costs, fees and expenses shall be borne solely by
Seller, Purchaser and Seller each hereby represent to the other that it has not
directly or indirectly employed or otherwise procured any broker in connection
with the sale of the Aircraft hereunder for whose compensation any of the other
parties is responsible or liable. Each party agrees to pay, indemnify, and hold
harmless the other from and against any and all liabilities, losses, costs,
damages, claims and expenses (including attorneys' fees and litigation costs)
the other shall ever suffer, incur or be threatened with because of any claim
by any broker or agent claiming by, through or under the indemnifying party,
whether or not meritorious, for any fee, commission or other compensation with
respect to the purchase, sale and leaseback of the Aircraft.
(k) Assignment. Purchaser shall have the right to transfer,
assign or delegate all, or any portion of its rights and obligations under this
Purchase Agreement and the other Operative Documents, as security to any lender
to Purchaser, including without limitation, the Financing Party, or otherwise,
and upon request of Purchaser, Seller shall execute any all documents or
certifications reasonably requested by Seller necessary to effect such
transfer, assignment or delegation and with respect to any such transfer,
assignment or delegation by Purchaser after the Closing, Purchaser shall bear
Seller's reasonable, direct, out-of-pocket costs in delivering such further
documents or certifications requested.
(l) Confidentiality. Each party to this Purchase Agreement agrees that
it will treat this Purchase Agreement, each of the other Operative Documents,
and the contents thereof as privileged and confidential and will not disclose,
or cause to be disclosed, the terms, hereof or thereof to any Person, except
that any such information may be disclosed (a) to the extent necessary in
connection with the enforcement of such party's rights under any Operative
Documents, (b) to such party's agents, attorneys and accountants, (c) to the
extent required pursuant to applicable law or by any governmental authority
(including pursuant to any applicable SEC regulations and as may be required by
the CAA), (d) to the extent that prior to such disclosure, such information is
publicly available (if such availability is not the result of the disclosing
party's breach of this subsection (l), and (e) with the prior written consent
of all parties hereto.
(m) Counterparts. This document may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
but one and the same original.
IN WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement on the date first set forth above.
PURCHASER
AEROCENTURY CORP.
By: ____________________
Title: _________________
SELLER
UNI Airways Corporation
By: ____________________
Title: _________________
[Exhibits Omitted from Filing]
AIRCRAFT 407
AIRCRAFT SALE AND PURCHASE AGREEMENT
THIS AIRCRAFT SALE AND PURCHASE AGREEMENT (this "Purchase
Agreement"), dated as of December 3, 2004, is by and among AeroCentury Corp., a
United States, State of Delaware corporation ("Purchaser") and UNI Airways
Corporation, a corporation organized under the laws of Taiwan ("Seller").
W I T N E S S E T H:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, the
Aircraft (as defined below);
WHEREAS, contemporaneously with the purchase and sale of the Aircraft,
Purchaser and Seller will enter into a lease agreement whereunder Seller shall
lease the Aircraft from Purchaser;
WHEREAS, further contemporaneously with purchase, sale and lease of the
Aircraft, Purchaser shall purchase from, and lease back, to Seller the Other
Aircraft;
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
Section 1. Definitions. The following terms, when capitalized, shall
have the following meanings for all purposes of this Purchase Agreement, except
where the context otherwise requires and all other capitalized terms used
herein, but not otherwise defined herein, shall be as defined in the Lease, as
defined below:
"Aircraft" shall mean the Airframe, together with Engines,
Propellers, Landing Gear and APU each, as equipped with all Parts, equipment,
components and accessories installed therein or thereon, in each case, as more
fully described and defined in the Lease and all specifications and
descriptions of "Aircraft" "Airframe", "Engines", "Propellers", "Landing Gear",
"APU", and "Parts" leased thereunder and including all Aircraft Documents as
also defined in the Lease and notwithstanding any, more limited description of
the "Aircraft" under the Xxxx of Sale, the description of the "Aircraft" under
the Lease shall, without further notation in the Xxxx of Sale, be the
"Aircraft" conveyed under the Xxxx of Sale.
"Xxxx of Sale" shall mean the long form xxxx of sale pertaining to the
Aircraft in the form of Exhibit A hereto.
"CAA" shall mean the Civil Aeronautics Administration of Taiwan and any
and all other governmental unit, agency, office or department with authority
over the registration, operation, use, and airworthiness of civil aircraft
registered and operated in commercial passenger service in Taiwan. Under the
Lease, the CAA is referred to as the "Aviation Authority".
"Closing" shall mean the closing of the Aircraft purchase and sale and
simultaneous leasing transaction contemplated by this Purchase Agreement.
"Closing Date" shall mean the date of Closing as such term is defined
in Section 2(c) of this Purchase Agreement.
"Cross Receipt and Acceptance Certificate" shall mean the Cross Receipt
and Acceptance Certificate to be executed and delivered by Seller and Purchaser
on the Closing Date, in the form of Exhibit B attached hereto.
"Lease" means the Lease Agreement, dated of even date herewith,
between the Seller and the Purchaser relating to the Aircraft, as supplemented
and amended.
"Other Aircraft" means the de Havilland model DHC-8-311 aircraft
bearing manufacturer's serial number 406 and Taiwan registration number B-15227
to be purchased by Purchaser from, and leased back to, Seller on the same terms
and conditions as the Aircraft.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or agency or political subdivision thereof.
2. CLOSING OF PURCHASE AND SALE.
(a) Sale and Purchase. Subject to the terms and conditions set forth in
this Purchase Agreement, Seller agrees to sell and Purchaser agrees to purchase
the Aircraft on the Closing Date (as set forth in Section 2(c)).
(b) Purchase Price. The purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Aircraft shall be US$5,500,000. The
Purchaser shall retain US$247,500 of the Purchase Price as the "Security
Deposit" and US$82,500 for the first month's Rent, each to be paid by Lessee
under the Lease, and at Closing, Purchaser shall, by wire transfer of readily
available funds, wire the amount of US$5,170,000, to the following account:
The International Commercial Bank of China
Taipei Airport Branch
Account Name: UNI Airways Corporation
Account Number: 05553045704
Swift Code XXXXXXXX000
(c) Closing Date and Place. The closing of this purchase and sale shall
occur on or before, and no later than, Xxxxxxxx 0, 0000, 0000 (Xxxxxx, Xxxxxx
time, the evening of December 2, 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx time) or such
other date as mutually agreed by Purchaser and Seller (the "Closing Date"). The
Closing shall take place in the offices of Xxxxx & XxXxxxxx in Taipei, Taiwan
or such other location as is mutually agreeable to the parties.
3. CLOSING CONDITIONS AND PROCEDURES
(a) Conditions Precedent to Purchaser's Obligations. It shall be a
condition precedent to Purchaser's obligations to purchase the Aircraft as
contemplated hereunder that:
(i) the items to be delivered by Seller at Closing by
Seller under Section 3(c) shall have been delivered to Purchaser;
(ii) Seller shall have executed and delivered to
Purchaser the Operative Documents to which Seller is a party or which
are required to be delivered by Seller;
(iii) Purchaser shall have received:
(A) a copy of Seller's statutes, articles of
incorporation or association and other constituent documents certified
as of the Closing Date by a duly authorized officer of Seller as being
true, correct and current;
(B) a copy of the resolutions of the Board
of Directors of Seller certified as
of the Closing Date by a duly authorized officer of Seller duly
authorizing execution, delivery and performance by of this Purchase
Agreement and all other Operative Documents;
(C) an incumbency certificate as to the
person or persons authorized to
execute and deliver this Purchase Agreement on behalf of Seller and all
documents, including all Operative Documents, described herein required
to be executed and delivered by Seller hereunder; and
(D) a certificate of a duly authorized
officer of Lessee certifying that the Aircraft has not been subject to
total loss or any damage since Lessor's inspection thereof on November
26, 2004;
(iv) Purchaser and the Financing Party shall have received
an opinion of Xxxxx & XxXxxxxx, Taiwan, in such form as Purchaser and
the Financing Party shall approve, covering the due authorization and
enforceability of the Operative Documents, the filing for registration
and recording of all pertinent Operative Documents and agreements under
Taiwan law (including with the CAA) as are contemplated by the Operative
Documents and covering such other matters as Purchaser and the Financing
Party deem relevant to the closing of the sale, purchase, lease and
finance of the Aircraft hereunder;
(v) Purchaser shall have received all other documentation
(including Seller's delivery of the CAA approval to the sale and lease
transaction contemplated hereby and any other third party consents)
reasonably necessary to consummate the transactions contemplated hereby
and reasonably required to evidence consummation of the transactions
contemplated by the Operative Documents, including without, limitation,
the sale and lease back of the Other Aircraft contemporaneously with
the sale hereunder and upon the same terms and conditions as the
Aircraft;
(vi) All conditions precedent to the obligations of Purchaser
(as "Lessor") under, and as set forth in the Lease shall have been met
to the reasonable satisfaction of Purchaser, including, without
limitation, that all filings with respect to Purchaser's ownership, the
Lease and the security interest of the Financing Party have been made
or shall be made contemporaneously with Closing and that the insurance
coverages required by the Lease shall be in full force and effect upon
Closing;
(vii) Purchaser shall have received reasonably satisfactory
evidence (in the form of a statement within the opinion of Xxxxx &
XxXxxxxx after review of all pertinent public records) of the absence
of any liens or encumbrances (recorded or otherwise) affecting or
pertaining to the Aircraft, Seller's title, and/or Seller's ability to
transfer good and marketable title to the Aircraft at Closing, free and
clear of any lien, claim or encumbrance whatsoever, or, if the claim of
any lender or secured party to Seller shall have or claim any such
interest, Purchaser and the Financing Party shall have received
reasonably satisfactory evidence (in the form of a statement within the
opinion of Xxxxx & XxXxxxxx) of the due and prompt release of any lien,
claim or encumbrance of any lender or secured party to the Seller upon
payment of the Purchase Price under this Purchase Agreement to such
lender or secured party;
(viii) Without limiting the obligation of Seller to pay and
indemnify the Purchaser for such taxes pursuant to this Purchase
Agreement and the Lease, the Purchaser shall be satisfied that, at the
time of the sale to Purchaser under this Purchase Agreement, the
Aircraft is located in a jurisdiction that will not cause any sale,
use, excise, transfer, gross receipts, value added or similar taxes,
fees or charges to be levied against the Purchaser under any applicable
law.
(ix) Purchaser shall have received such other corporate
certificates, instruments, agreements, documents and evidence as the
Purchaser or its counsel may reasonably request in order to establish
the consummation of the transactions contemplated by the Operative
Documents, the taking of all necessary corporate action in connection
therewith and compliance with the conditions set forth in this Purchase
Agreement and the Lease.
(b) Conditions Precedent to Seller's Obligations. It shall be a
condition precedent to Seller's obligations to consummate the transactions
contemplated hereunder that:
(i) the items to be delivered by Purchaser at Closing set
forth in Section 3(d) shall be delivered to Seller;
(ii) the Purchaser shall have executed and delivered the
Operative Documents to which Purchaser is a party or which are required
to be delivered by Purchaser;
(iii) Seller shall have received:
(A) a copy of the Purchaser's statutes,
articles of incorporation or association and other constituent documents
certified as of the Closing Date by a duly authorized officer of
Purchaser as being true, correct and current;
(B) a copy of the resolutions of the Board
of Directors of Purchaser certified as of the Closing Date by a duly
authorized officer of Purchaser duly authorizing execution, delivery and
performance by of this Purchase Agreement and all other Operative
Documents;
(C) an incumbency certificate as to the
person or persons authorized to execute and deliver this Purchase
Agreement on behalf of Purchaser andc all documents, including all
Operative Documents, described herein required to be executed and
delivered by Purchaser hereunder;
(vi) Seller shall have received all other documentation
(including CAA approval of the sale and lease transaction contemplated
hereby and any other third party consents) reasonably necessary to
consummate the transactions contemplated by the Operative Documents.
(c) Seller's Deliveries at Closing. Subject to the terms and
conditions hereof, at the time of Closing, the Seller shall deliver the
following documents to Purchaser:
(i) the Xxxx of Sale for the Aircraft in the form of
Exhibit A, duly executed by Seller;
(ii) the Cross Receipt and Acceptance Certificate with respect
to the Aircraft in the form of Exhibit B, duly executed by Seller;
(iii) the Lease, together with all documents required to be
executed and delivered to Purchaser thereunder and hereunder, all, as
applicable, duly executed by Seller;
(iv) an opinion of the in-house legal counsel to Seller, in
such form as Xxxxx & XxXxxxxx shall approve and require, as may be
necessary to support the legal opinions to be issued to Purchaser and
the Financing Party by such firm as contemplated by the Operative
Documents;
(v) such other instruments, certificates and documents which,
in the reasonable opinion of Purchaser, the Financing Party and their
respective counsel, need to be executed and delivered by Seller on or
before the Closing Date in order to consummate the transactions
contemplated hereby, including, without limitation, that formalities of
notarization and legalization of all documents requiring the same, have
been notarized and legalized.
(d) Purchaser's Deliveries at Closing. Subject to the terms and
conditions hereof, at the time of Closing, Purchaser shall deliver the following
to Seller:
(i) The Purchase Price for the Aircraft in the amount
specified in Section 2(b) hereof in the manner specified thereby;
(ii) Cross Receipt and Acceptance Certificate in respect to
the Aircraft in the form of Exhibit B, duly executed by Purchaser;
(iv) the Lease, together with all documents required to be
executed and delivered to Seller thereunder and hereunder, all duly
executed by Purchaser;
(iii) such other instruments, certificates and documents as
needed, in the reasonable opinion of Seller, to be executed and
delivered in order to consummate the transactions contemplated hereby.
(e) Delivery and Acceptance; Risk of Loss.
(i) Seller, as "Lessee", and Purchaser as "Lessor", shall,
contemporaneously with the Closing, enter into the Lease with each
other. Upon the Closing of the purchase and sale, Seller shall (i)
cause all the conditions specified in the Lease to be fully satisfied;
and (ii) accept delivery of the Aircraft under the Lease in accordance
with the terms of the Lease. Such a delivery to Seller shall be deemed
to be delivery of the Aircraft to Purchaser hereunder; provided,
however, that Purchaser shall not be obligated to purchase the
Aircraft and shall not be deemed to have accepted delivery of the
Aircraft, if there shall then exist an "Event of Default" or "Event
of Loss" (as such terms are defined in the Lease) or event which,
with the passage of time, would become an Event of Default or Event
of Loss with respect to the Aircraft.
(ii) Title and risk of loss to the Aircraft shall pass from
Seller to Purchaser under this Purchase Agreement upon payment of the
Purchase Price by Purchaser to Seller and the simultaneous delivery
by Seller to Purchaser of the Xxxx of Sale, each to occur at the time
of Closing.
(iii) If the Aircraft is destroyed or has been damaged in any
way after inspection by Lessor on November 26, 2004 and before
Closing, Seller shall notify Purchaser thereof and upon receipt of
such notice, this Purchase Agreement shall terminate without further
act of either party and, at the option of Purchaser, upon notice to
Seller, the purchase agreement for the Other Aircraft shall terminate
and thereafter, neither party shall have any further rights or
obligations with respect to, the purchase of the Aircraft and, if
elected by Purchaser, the purchase of the Other Aircraft.
Section 4. No Express or Implied Warranties
(a) With respect to the Aircraft, Purchaser acknowledges that:
EXCEPT FOR THE WARRANTY OF TITLE TO THE AIRCRAFT AS SET FORTH IN SECTION
5(b)(v) HEREOF AND IN THE XXXX OF SALE AND THE OTHER REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 5(b) HEREOF, SELLER HAS NOT MADE ANY
REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE,
RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS PURCHASE AGREEMENT. THE
AIRCRAFT IS BEING ACQUIRED BY PURCHASER ON AN "AS IS, WHERE IS AND WITH ALL
FAULTS" BASIS.
Section 5. Representations and Warranties.
(a) Representations and Warranties - Purchaser. Purchaser represents
and warrants to Seller upon execution hereof and at Closing that:
(i) Purchaser is a corporation duly organized and validly
existing under the laws of the State of Delaware, United States of
America, and it has the power and authority to own its assets and carry
on its business as presently carried on;
(ii) the execution, delivery and performance of the Operative
Documents to which it is a party and the consummation of the
transactions contemplated thereby have been (or by Closing will have
been) duly authorized by all necessary action of Purchaser;
(iii) assuming the validity of execution and delivery by any
other parties other than the Purchaser, the Operative Documents when
executed and delivered by Purchaser constitute or will constitute
legal, valid and binding obligations of Purchaser and enforceable in
accordance with their respective terms except to the extent that such
enforceability may be limited by bankruptcy, insolvency or similar laws
respecting creditors' rights generally;
(iv) the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, the Operative
Documents to which Purchaser is a party will in no way exceed the
powers granted to Purchaser, or violate in any respect any provision
of, or cause a breach or default of:
(A) any law or regulation or any order or decree of any
governmental authority, agency or court or generally accepted
interpretation thereof or any judgment, decree or permit to which
Purchaser is subject; and
(B) any resolution of the directors or shareholder of
Purchaser; or any mortgage, charge, deed, contract or other undertaking
or instrument of Purchaser;
(vi) there are no pending or, to the knowledge of Purchaser,
threatened actions, or proceedings against, as the case may, be, before
any court, arbitrator or administrative agency which, if adversely
determined, would materially adversely affect the ability of Purchaser
to perform its obligations under this Purchase Agreement or any of the
other Operative Documents to which it is a party on the Closing Date.
(b) Representations and Warranties - Seller. Seller represents and
warrants to Purchaser upon the execution hereof and at Closing that:
(i) Seller is a corporation duly organized and validly existing under
the laws of the country of Taiwan, and it has the power and authority
to own its assets and carry on its business as presently carried on;
(ii) the execution, delivery and performance of the Operative Documents
to which it is a party and the consummation of the transactions
contemplated thereby have been (or by Closing will have been) duly
authorized by all necessary action of Seller;
(iii) assuming the validity of execution and delivery by any other
parties other than the Purchaser, the Operative Documents when
executed and delivered by Purchaser constitute or will constitute
legal, valid and binding obligations of Seller and enforceable in
accordance with their respective terms except to the extent that such
enforceability may be limited by bankruptcy, insolvency or similar
laws respecting creditors' rights generally;
(iv) the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, the Operative Documents
to which Seller is a party will in no way exceed the powers granted to
Purchaser, or violate in any respect any provision of, or cause a
breach or default of:
(A) any law or regulation or any order or decree of any
governmental authority, agency or court or generally accepted
interpretation thereof or any judgment, decree or permit to which
Seller is subject; or
(B) the Articles of Incorporation of Seller or any resolution
of the directors or shareholders of Seller; or any mortgage, charge,
deed, contract or other undertaking or instrument of Seller;
(v) Seller is, and at the time of Closing shall be, the legal
and beneficial owner of the Aircraft, and upon the Closing, Seller
shall convey good and valid title to the Aircraft, free and clear of
any claims, liens, security interests, encumbrances or rights of others
of any nature whatsoever (except for any lien of the Financing Party)
and Seller will warrant and defend such title forever against all
claims and demands;
(vi) there are no pending or, to the knowledge of Seller,
threatened actions, or proceedings against, as the case may, be, before
any court, arbitrator or administrative agency which, if adversely
determined, would materially adversely affect the ability of Seller to
perform its obligations under this Purchase Agreement or any of the
other Operative Documents to which it is a party on the Closing Date.
Section 6.Additional Covenants and Agreements of Seller and Purchaser
-----------------------------------------------------------
(a) Effective at Closing, Seller shall and does hereby assign,
transfer and set over to Purchaser, any and all warranties, service life
policies, product support agreements and guaranties of manufacturers and
maintenance, supply and overhaul facilities pertaining to the Aircraft, and any
and all equipment associated therewith, if and to the full extent the same are
assignable and transferable. Upon request of Purchaser, Seller shall give
Purchaser all assistance in enforcing the rights of Purchaser (in the name of
Seller or otherwise) arising under such warranties; and from time to time, upon
the request of Purchaser, Seller shall give notice to any such manufacturers
and maintenance, supply and overhaul facilities of the foregoing assignment to
Purchaser.
(b) Seller agrees to indemnify, reimburse and hold harmless Purchaser
and its shareholders, directors, servants, agents, employees, subcontractors,
successors and assigns, from and against any and all claims, damages, losses,
liabilities, demands, suits, judgments, causes of action, legal proceedings,
whether civil or criminal, penalties, fines, other sanctions, and any costs and
expenses in connection therewith, including costs of investigation and
attorney's fees and expenses, which may result from or arise in any manner out
of, or in relation to breach or default of Seller's representations and
warranties contained in the Operative Documents, including, without limitation,
breach of Seller's warranty of title.
(c) Seller shall be responsible for and shall indemnify, defend and
hold Purchaser and its shareholders, directors, servants, agents, employees,
subcontractors, successors and assigns, harmless, on demand, and on an
after-tax basis, from and against all taxes assessed by any governmental
entity, agency or instrumentality of any country (excluding the United States),
whether state or federal, in connection with the sale of the Aircraft to
Purchaser For purposes of this Purchase Agreement, the term "taxes" shall mean
all taxes, levies, imposts, duties, withholdings, or charges of similar nature,
including, without limitation, any corporation, capital gains, income, gross
receipts, franchise, transfer, sales, use, ad valorem, business, occupation,
personal property, stamp, document or other taxes whatsoever imposed by any
national local taxing or fiscal authority or agency, together with interest
thereon and penalties in respect thereof, and "taxation" shall be construed
accordingly.
(d) Purchaser agrees to indemnify, reimburse and hold harmless Seller
and its shareholders, directors, servants, agents, employees, subcontractors,
successors and assigns, from and against any and all claims, damages, losses,
liabilities, demands, suits, judgments, causes of action, legal proceedings,
whether civil or criminal, penalties, fines, other sanctions, and any costs and
expenses in connection therewith, including costs of investigation and
attorney's fees and expenses, which may result from or arise in any manner out
of, or in relation to breach or default of Purchaser's representations and
warranties contained in the Operative Documents.
(e) The indemnities set forth in this Section 6 shall survive the
closing of the purchase and sale transaction set forth in this Purchase
Agreement.
Section 7. Transaction Costs.
Except as otherwise expressly stated in this Purchase Agreement or the other
Operative Documents, each party shall be responsible for its own expenses (and
that of its respective counsel) incurred in connection with the negotiation,
preparation and execution of the Operative Documents and consummation of the
sale and lease transaction contemplated hereby; provided, however, Seller shall
bear the fees ,costs and expenses incurred by Purchaser in retaining Xxxxx &
XxXxxxxx, as Taiwan counsel to Purchaser and the Financing Party and in making
all Taiwan filings, registrations and recordings of Lessor's ownership of the
Aircraft, the Lease and any mortgage of the Financing Party and obtaining legal
opinions related thereto and related to matters such as taxation and enforcement
in Taiwan.
Section 8. RESERVED
Section 9. Miscellaneous.
(a) Notices. All notices required or permitted hereunder shall be in
writing and may be either personally delivered, faxed, telexed or sent by a
reputable international courier service addressed as follows:
If to Purchaser:
AeroCentury Corp.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX, 00000
Attn: Chief Operating Officer
Fax: (000) 000-0000
Telephone: (000) 000-0000
If to Seller:
UNI Airways Corporation
0X, Xx. 000
Xxxxx-Xx X. Xx. Xxx.0
Xxxxxx 000
Xxxxxx
Attn: Chairman and President
Fax: 000 0 000 00000
Telephone: 000 0 000 00000
or at such other address as either party gives to the other from time to time
through proper notice. Any such notice shall be effective and shall be deemed
to have been given when received at the addresses set forth above, as such
addresses are modified as set forth above.
(b) Nonwaiver; Remedies Cumulative. No covenant or condition of this
Purchase Agreement can be waived except by the written consent of the party to
be charged with such waiver. Forbearance or indulgence by any party in any
regard whatsoever shall not constitute a waiver of the covenant or condition to
which such forbearance or indulgence may relate, and until complete performance
thereof, or the written waiver thereof, the forbearing or indulging party shall
be entitled to invoke any remedy available to it under this Purchase Agreement
or by law or in equity or otherwise despite such forbearance or indulgence. No
right or remedy of any party provided for herein is exclusive of any other
right or remedy, but all such rights and remedies are cumulative of every other
right and remedy provided for herein, at law, in equity, by statute, or
otherwise, and may be exercised concurrently or separately from time to time.
The prevailing party shall be entitled to attorney's fees and forum costs.
(d) Applicable Law. This Purchase Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of
California (without regard to any conflicts of law rule which might result in
the application of the laws of any other jurisdiction), including all matters
of construction, validity and performance.
(e) Severability. Any provision of this Purchase Agreement which may
be prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability in such jurisdiction only,
without invalidating the remaining provisions hereof in such jurisdiction and
without invalidating any of the provisions hereof in any other jurisdiction.
(f) Waiver of Jury Trial. BY ITS SIGNATURE BELOW WRITTEN EACH
PARTY HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS PURCHASE AGREEMENT OR RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY
RELIED ON THE WAIVER IN ENTERING INTO THIS PURCHASE AGREEMENT AND THAT EACH WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
HERETO FURTHER WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER WITH
ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS PURCHASE AGREEMENT, ANY OPERATIVE DOCUMENT, OR ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION. IN THE EVENT OF LITIGATION, THIS
PURCHASE AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(g) Consent to Jurisdiction. Each of Purchaser and Seller irrevocably
agrees that any legal action or proceedings arising out of or in connection
with this Purchase Agreement may be brought in any California State court
sitting in the County of San Mateo or Federal Court for the Northern District
of California, which shall have the exclusive jurisdiction to settle any
disputes arising out of or in connection with this Purchase Agreement and
irrevocably and unconditionally submits to the exclusive jurisdiction of such
courts. Each of Purchaser and Seller irrevocably waives any objection it may
now or hereafter have to the laying of venue of any action or proceeding in any
court and any claim it may now or hereafter have that any action or proceeding
has been brought in an inconvenient forum.
(h) Further Assurances. Purchaser and Seller will promptly, at any
time and from time to time, execute and deliver to each other, such further
instruments and documents, and take such further action, as Purchaser and
Seller, as the case may be, may from time to time reasonably request and which
is necessary to carry out this Purchase Agreement and to establish and protect
the rights, interests, and remedies created in favor of Purchaser and Seller.
(i) Exclusivity. This Purchase Agreement is the complete and exclusive
statement of the parties hereto with respect to the subject matter hereof and
supersedes all prior oral and written communications, proposals, agreements,
representations, statements, negotiations and undertakings between the parties
hereto with respect to the subject matter hereof.
(j) No Broker. Except for the services of Xxxxxx Xxxxx and Plane
Trading Limited, whose costs, fees and expenses shall be borne solely by
Seller, Purchaser and Seller each hereby represent to the other that it has not
directly or indirectly employed or otherwise procured any broker in connection
with the sale of the Aircraft hereunder for whose compensation any of the other
parties is responsible or liable. Each party agrees to pay, indemnify, and hold
harmless the other from and against any and all liabilities, losses, costs,
damages, claims and expenses (including attorneys' fees and litigation costs)
the other shall ever suffer, incur or be threatened with because of any claim
by any broker or agent claiming by, through or under the indemnifying party,
whether or not meritorious, for any fee, commission or other compensation with
respect to the purchase, sale and leaseback of the Aircraft.
(k) Assignment. Purchaser shall have the right to transfer,
assign or delegate all, or any portion of its rights and obligations under this
Purchase Agreement and the other Operative Documents, as security to any lender
to Purchaser, including without limitation, the Financing Party, or otherwise,
and upon request of Purchaser, Seller shall execute any all documents or
certifications reasonably requested by Seller necessary to effect such
transfer, assignment or delegation and with respect to any such transfer,
assignment or delegation by Purchaser after the Closing, Purchaser shall bear
Seller's reasonable, direct, out-of-pocket costs in delivering such further
documents or certifications requested.
(l) Confidentiality. Each party to this Purchase Agreement agrees that
it will treat this Purchase Agreement, each of the other Operative Documents,
and the contents thereof as privileged and confidential and will not disclose,
or cause to be disclosed, the terms, hereof or thereof to any Person, except
that any such information may be disclosed (a) to the extent necessary in
connection with the enforcement of such party's rights under any Operative
Documents, (b) to such party's agents, attorneys and accountants, (c) to the
extent required pursuant to applicable law or by any governmental authority
(including pursuant to any applicable SEC regulations and as may be required by
the CAA), (d) to the extent that prior to such disclosure, such information is
publicly available (if such availability is not the result of the disclosing
party's breach of this subsection (l), and (e) with the prior written consent
of all parties hereto.
(m) Counterparts. This document may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
but one and the same original.
IN WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement on the date first set forth above.
PURCHASER
AEROCENTURY CORP.
By: ____________________
Title: _________________
SELLER
UNI Airways Corporation
By: ____________________
Title: _________________
[Exhibits Omitted from Filing]
