AIRCRAFT PURCHASE AGREEMENT
(48112)
This
Aircraft Purchase Agreement (the “Agreement”)
is
entered into this 11th day of September 2006, between Aero California S.A.
de C.V., a Mexican Corporation located at Arquiles Serdan 0000, Xx Xxx, Baja
California 23000, Mexico (“Aero
California”),
Interglobal, Inc., a Nevada corporation, located at 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx Xxxx, Xxxxxx 00000 (“Buyer”; together Aero California the
“Buyer Parties”), and PLM Equipment Growth Fund V Liquidating Trust, a
liquidating trust, located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(as
successor in interest to PLM Equipment Growth Fund V) (“Seller”).
WHEREAS,
Buyer and Seller are parties to that certain Aircraft Lease Agreement (48112)
dated as of August 1, 2000 (as supplemented and amended from time to time,
the
“Lease
(48112)”)
with
respect to one XxXxxxxxx Xxxxxxx model DC-9-32 Aircraft bearing serial number
48112 and equipped with Xxxxx & Xxxxxxx model JT8D-15, hushkitted engines
(“Aircraft
48112”);
WHEREAS,
capitalized terms used in this Agreement and not defined herein shall have
the
meanings set forth in the Lease;
WHEREAS,
pursuant to that certain Aircraft Sublease Agreement dated August 11, 2000
between Buyer as sublessor and Aero California as sublessee (“Sublease”), Aero
California is currently in control of the Aircraft;
WHEREAS,
Seller desires to sell and Buyer desires to purchase the Aircraft pursuant
to
the terms and conditions set forth in this Agreement;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereby agree to the
following:
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1.
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SALE
AND PURCHASE OF THE
AIRCRAFT
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1.1 Sale
of the Aircraft.
Seller
shall sell to Buyer, and Buyer shall buy from Seller, the Aircraft upon the
terms and the conditions of this Agreement. The sale shall be effective upon
satisfaction of the conditions precedent set forth in Sections 2.2 and 2.3,
below, the payment of the Purchase Price under Section 1.2, and the delivery
of
the items listed in Sections 2.2 and 2.3, below.
1.2 Purchase
Price and Deposit.
The
total purchase price for the Aircraft shall be US$300,000.00 (the "Purchase
Price").
The
Purchase Price shall be funded to the law firm of McAfee and Xxxx, acting as
escrow agent (“Agent”), prior to closing in accordance with that certain Escrow
Agreement among Seller, the Buyer Parties and Agent dated as of the date hereof
(the “Escrow Agreement”). At closing, Agent shall release the funds to Seller
without further instruction of Buyer, and Agent shall date and thereafter
release documents to both Seller and Buyer consistent with the terms of the
Escrow Agreement. Seller and Buyer shall each be responsible for 50% of the
fees
and expenses of Agent pursuant to the Escrow Agreement.
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1.3 Taxes.
The
Buyer Parties shall be responsible for the payment of all sales, use, value
added, personal property, and other taxes, duties, and charges of any kind
imposed, levied, or assessed in connection with the sale of the Aircraft, other
than taxes based on or measured by net or gross income of Seller or any taxes
that relate to or arise out of any period prior to the effective date of the
sale (“Taxes”). Buyer shall promptly pay to the appropriate taxing jurisdiction
the amount of all Taxes, and shall send to Seller evidence of the payment of
such Taxes or evidence of any exemptions to applicable Taxes.
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2.
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CLOSING
AND DELIVERY
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2.1 Closing.
The
closing shall occur, subject to compliance by the parties of their respective
obligations, at such time and location as the parties may agree on or prior
to
September 11, 2006 (the “Closing”).
2.2 Seller’s
Conditions Precedent.
Seller’s obligation to sell and deliver the Aircraft to Buyer shall be subject
to the satisfaction of each of the following conditions:
(a) Seller
shall have received from the Buyer Parties the Purchase Price, paid in
full;
(b) Buyer
shall have confirmed to Seller the location of the Aircraft at the time of
Closing and either paid any applicable taxes or provided Seller with any
documentation that may be reasonably required by Seller with respect to any
sales tax exemptions to be claimed by Buyer pursuant to Section 1.3, above;
(c) Buyer
shall have delivered to Agent an undated and executed Delivery and Acceptance
Receipt in the form of Exhibit B to this Agreement as to the Aircraft to be
dated by the Agent at Closing;
(d) Buyer
shall have delivered to Agent an undated and executed Lease Termination in
the
form of Exhibit C to this Agreement as to the Aircraft (the “Lease Termination”)
to be dated by the Agent at Closing; and
(e) Buyer
and
Aero California shall have delivered to Agent an undated and executed Sublease
Termination in the form of Exhibit D to this Agreement as to the Aircraft (the
“Sublease Termination”) to be dated by the Agent at Closing.
2.3 Buyer’s
Conditions Precedent.
Buyer’s
obligation to purchase and take delivery of the Aircraft from Seller shall
be
subject to satisfaction of each of the following conditions:
(a) Seller
shall have delivered to Agent an undated and executed Xxxx of Sale in the form
attached hereto as Exhibit A to this Agreement as to the Aircraft to be dated
by
the Agent at Closing;
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(b) Seller
shall have delivered to Agent an undated and executed Lease Termination signed
by Seller to be dated by the Agent at Closing;
(c)
Seller
shall have delivered to Agent an undated and executed Sublease Termination
signed by Seller to be dated by the Agent at Closing; and
(d)
Seller
shall have delivered to Agent an undated and executed complete Release of
Guaranty in favor of Aero California’s parent corporation, CITS Transportes,
S.A. de C.V. (“Guarantor”) in the form attached hereto as Exhibit E to this
Agreement to be dated by the Agent at Closing.
2.4
Deliveries
by Buyer and Seller.
Prior
to Closing, each of Buyer and Seller shall deliver the documents identified
in
Section 2.2 and 2.3 of this Agreement and as further specified in Exhibit B
to
the Escrow Agreement in the condition described thereon.
2.5 Delivery
Location; Risk of Loss.
The
costs of delivery shall be at Buyer’s expense. Buyer acknowledges that Buyer and
Aero California are and will be in control of the Aircraft at Closing and are
solely responsible for locating the Aircraft at a suitable delivery location
acceptable to Seller and Buyer (the “Delivery
Location”),
and
the costs thereof. Seller and Buyer agree to cooperate with each other to ensure
that the sale and delivery of, and transfer of title to, the Aircraft is
completed in a manner such that to minimize any taxes imposed with respect
to
sale of the Aircraft. Upon Closing (without waiver of Buyer’s obligations, as
“lessee” with respect to risk of loss to the Aircraft under the Lease, and
without waiver of Aero California’s obligations, as “sublessee” with respect to
risk of loss to the Aircraft under the Sublease), Buyer shall be deemed to
have
accepted and assumed all risk of loss with respect to the Aircraft subsequent
thereto, and Buyer shall be responsible for all costs and expenses related
to
transportation of the Aircraft from the Delivery Location after
Closing.
2.6 Termination
of Lease and Sublease.
Upon
satisfaction of the conditions precedent above and the Closing of the
transactions hereunder, the Lease and Sublease shall be deemed terminated in
accordance with the Lease Termination and the Sublease Termination. The parties
acknowledge that Seller, as material consideration for such termination, shall
have no obligation to return the security deposit paid by Lessee pursuant to
Section 3.4 of the Lease, notwithstanding anything to the contrary in said
Section.
3. REPRESENTATIONS
AND WARRANTIES OF AERO CALIFORNIA
3.1 No
Violation.
Aero
California has full authority to execute, deliver, and perform this Agreement,
and the execution, delivery and performance of this Agreement will not violate
any provision of law, any order of any court or any other agency of government,
or provision of any indenture, agreement, document or other instrument to which
Aero California is bound.
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3.2 Valid
and Binding Obligations.
This
Agreement constitutes the legal, valid and binding obligation of Aero
California, enforceable against Aero California in accordance with its
terms
4. REPRESENTATIONS
AND WARRANTIES OF SELLER
4.1 No
Violation.
Seller
has full authority to execute, deliver, and perform this Agreement, and the
execution, delivery and performance of this Agreement will not violate any
provision of law, any order of any court or any other agency of government,
or
provision of any indenture, agreement, document or other instrument to which
Seller is bound.
4.2 Valid
and Binding Obligations.
This
Agreement constitutes the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms.
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5.
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REPRESENTATIONS
AND WARRANTIES OF BUYER.
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5.1 No
Violation.
Buyer
has full authority to execute, deliver and perform this Agreement and the
execution, delivery and performance of this Agreement will not violate any
provision of law, any order of any court or any other agency of government,
or
provision of any indenture, agreement, document or other instrument to which
Buyer is bound.
5.2 Valid
and Binding Obligations.
This
Agreement constitutes the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
5.3 Condition
of the Aircraft.
The
Aircraft shall be sold by Seller to Buyer “AS IS” and “WHERE IS,” as further
described in Section 6.2 below and Buyer
expressly agrees to take the Aircraft on such basis.
Buyer
has based decisions to buy the Aircraft on Aero California’s use under the Lease
and the Buyer Parties’ own inspections and review, and Buyer has not relied on
any representations or warranties of Seller or Seller’s agents except as
expressly set forth in this Agreement.
6. ADDITIONAL
WARRANTY TERMS.
6.1 Assignment
of Warranties.
To the
extent that any manufacturers or other similar warranties are still in effect
in
respect of the Aircraft (other than warranties that by their terms are not
assignable), Seller hereby assigns the same to Buyer, such assignment to be
effective upon acceptance of the Aircraft as specified above.
6.2 Disclaimer.
THE
AIRCRAFT SHALL BE SOLD, TRANSFERRED AND ASSIGNED IN ITS “AS IS, WHERE IS”
CONDITION AT THE TIME OF DELIVERY AND, WITH THE EXCEPTION OF THE REPRESENTATIONS
AND WARRANTIES PROVIDED FOR IN SECTION 4 HEREOF AND IN THE XXXX OF SALE
DELIVERED HEREUNDER, SELLER MAKES NO WARRANTIES, GUARANTEES OR REPRESENATIONS
OF
ANY KIND, EITHER EXPRESS OR IMPLED, STATUTORY OR OTHERWISE, THAT SHALL SURVIVE
DELIVERY OF THE AIRCRAFT OR OTHER ITEMS DELIVERED BY SELLER TO BUYER HEREUNDER.
BUYER WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES, OBLIGATIONS AND LIABILITIES
OF SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO
ANY
NONCONFORMANCE OR DEFECT IN THE AIRCRAFT, AIRCRAFT RECORDS OR OTHER THING
DELIVERED OR ASSIGNED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
THE
CONDITON OR AIRWORTHINESS THEREOF, THE EQUIPMENT THEREIN, DAMAGE THERETO, THE
LOGS, MANUALS OR OTHER RECORDS THEREOF, THE LOCATION OF THE AIRCRAFT, ANY
IMPLIED WARRANTY OF FITNESS OR MERCHANTABILITY, ANY LIABILITY ARISING FROM
STRICT LIABILITY IN TORT, PRODUCTS LIABILITY, IMPLIED WARRANTY ARISING FROM
COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR LOSS OR USE,
PROFIT OR OTHER CONSEQUENTIAL DAMAGES.
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7.
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INDEMNIFICATION,
RELEASE AND INSURANCE.
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7.1 Indemnification
by Buyer.
The
Buyer Parties jointly and severally agree to indemnify, reimburse, and hold
harmless Seller from and against all claims, damages, losses, liabilities,
demands, suits, judgments, causes of action, civil and criminal legal
proceedings, penalties, fines, and other sanctions, and any reasonable attorney
fees and other reasonable costs and expenses, (collectively, “Claims”), arising
(a) from any breach by Buyer of any representation, warranty or covenant by
Buyer under this Agreement (b) after the Closing in any manner out of the
Buyer’s purchase, acceptance, ownership, possession, use, maintenance, or
operation of the Aircraft. The Buyer waives and releases Seller from any
existing or future claims in any way connected with injury to or death of the
Buyer’s personnel, loss or damage of the Buyer’s property, or loss of use of any
property, which may result from or arise in any manner out of the ownership
(other than as set forth in Seller’s indemnity below and other than with respect
to the quality of title conveyed to Buyer), condition, use or operation of
the
Aircraft or be caused by any defect in the Aircraft.
7.2 Indemnification
by Seller.
Seller
agrees to indemnify, reimburse, and hold harmless the Buyer Parties from and
against all Claims, arising (a) from any breach by Seller of any representation,
warranty or covenant by Seller under this Agreement, and (b) the ownership
(but
not the use) of the Aircraft arising prior to Closing, but specifically
excluding any injury to or death of any person, and for any loss of, damage
to,
or destruction of any property whatsoever, in any manner, arising out of the
possession, delivery, non-delivery, condition, maintenance, lease, disposition,
operation or use of the Aircraft.
7.3 Release
by Buyer and Aero California.
The
Buyer Parties hereby release and forever discharge Seller from and against
any
and all claims, damages (whether direct, indirect, incidental, special or
consequential), losses, charges, fees, liabilities, obligations, demands, suits,
judgments, actions and other legal proceedings (whether civil or criminal),
penalties, fines, sanctions, and any reasonable costs, expenses and attorneys'
fees imposed on or asserted against Seller of any and every kind and nature
except to the extent arising under this Agreement or under that certain Aircraft
Purchase Agreement (47648 and 47666) between Buyer and Seller dated as of April
1, 2005 (the “Other Purchase Agreement”).
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7.4 Release
by Seller.
Seller
hereby releases and forever discharges the Buyer Parties from and against any
and all claims, damages (whether direct, indirect, incidental, special or
consequential), losses, charges, fees, liabilities, obligations, demands, suits,
judgments, actions and other legal proceedings (whether civil or criminal),
penalties, fines, sanctions, and any reasonable costs, expenses and attorneys'
fees imposed on or asserted against Buyer of any and every kind and nature
except to the extent arising under this Agreement or the Other Purchase
Agreement.
7.5 Insurance.
For a
period of two years commencing on the Closing date, the Buyer Parties shall,
at
their sole expense, maintain or cause to be maintained with a reputable insurer
in a leading insurance market aircraft third-party legal liability insurance
covering Seller and Seller’s affiliated, parent, and subsidiary companies, and
their respective officers, directors, shareholders, employees, agents,
contractors, successors and assigns as additional insureds for a combined single
limit in the amount of not less than the greater of (i) $300,000,000.00 for
any
one occurrence, and (ii) the amount of liability coverage applicable to the
other aircraft owned, possessed, conditioned, maintained, disposed or leased
by
Buyer and all affiliates of Buyer of the same or similar type as the Aircraft.
Such insurance shall waive any right of subrogation of the insurers against
each
additional insured and shall provide that, in the respective interest of each
additional insured and such policy, the insurance shall not be invalidated
by
any action or inaction of Buyer or any third-party and shall insure the
respective interest of the additional insureds, as they appear, regardless
of
any breach or violation of any warranty, declaration or condition contained
in
such policies by Buyer or any third-party. Such insurance shall be primary,
without a right of contribution from any other insurance that is carried by
any
additional insured and shall expressly waive any right of the insureds to said
offered counterclaim, whether by attachment or otherwise, in respect to any
policies, endorsements or coverages described herein and which relate to any
liability of any additional insureds. Buyer shall provide Seller with a
certificate of insurance on or prior to the Closing date and upon Seller’s
request at any time (but not more than once per year) prior to the second
anniversary of the Closing date. In the event Buyer sells the Aircraft to any
party other than an affiliated company, the Buyer Parties shall only be
obligated to provide the insurance described in this Section to Seller to the
extent that the subsequent purchaser or operator of the Aircraft provides such
insurance for any one or more of the Buyer Parties.
8. FURTHER
ASSURANCES. The
parties hereto agree to cooperate with each other, in the obtaining of necessary
licenses, permits, registrations, deregistrations, terminations and
authorization contemplated hereby or by the terms hereof, in the execution
and
filing of any documents or instruments required to give effect to this
Agreement, in establishing, maintaining, and protecting the rights and remedies
of each of the parties, and in carrying out the intent and purpose of this
Agreement.
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9.
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GENERAL
PROVISIONS
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9.1 Severance.
If any
one or more terms of this Agreement shall be adjudged invalid or unenforceable
in any respect, such terms shall be severed from this Agreement and the
remainder of this Agreement shall be valid and enforceable.
9.2 Counterparts
and Facsimile.
This
Agreement may be executed in two or more counterparts each of which shall be
deemed to be an original, and all of which together shall constitute one and
the
same instrument. A facsimile of this Agreement and facsimile signature or any
counterpart hereto will be deemed an original for all evidentiary and commercial
law purposes; however, such provision shall not excuse the parties from delivery
to Agent of originally-signed documents under this Agreement, including, this
Agreement and all exhibits hereto.
9.3 Modification.
None of
the terms and conditions of purchase herein set forth may be added to, modified,
superseded or otherwise altered except by a written instrument signed by Seller
and Buyer.
9.4 Force
Majeure.
Seller
shall be relieved of its obligations hereunder if the performance hereof is
delayed or prevented or interrupted by any cause beyond its reasonable control,
including, but not limited to, acts of God, public enemies, war, civil disorder,
fire, flood, explosion, labor disputes or strikes, shortage of materials,
failure of plant machinery, or any acts or orders of any governmental
authority.
9.5 Merger
and Survival.
This
Agreement and the documents delivered pursuant hereto constitute the entire
agreement and understanding between Aero California, Seller, and Buyer and
supersede any prior agreement or understanding related to subject matter of
this
Agreement. Sections 2, 3, 4, 5, 6, 7, and 8 of this Agreement shall survive
the execution and delivery of this Agreement and delivery of the
Aircraft.
9.6 Construction
and Governing Law.
This
Agreement has been entered into and shall be governed and interpreted under
the
laws of the State of New York as applicable in all respects including matters
of
construction, validity, enforcement and performance, but not as to choice of
law.
9.7 Notices.
Any
notice required or permitted under this Agreement shall be in writing and
delivered by certified mail to the respective parties at the addresses provided
on the first page to this Agreement or such address as a party may specify
from
time to time pursuant to a valid written notice hereunder.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have executed this Aircraft Purchase Agreement
on
the date first written above.
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SELLER:
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BUYER:
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PLM
EQUIPMENT GROWTH FUND V INTERGLOBAL,
INC.
LIQUIDATING
TRUST
By: __________________ By: __________________
Name: __________________ Name: __________________
Title: __________________ Title: __________________
AERO
CALIFORNIA:
AERO
CALIFORNIA S.A. DE C.V.
By: __________________
Name: __________________
Title: __________________
