EX-10.1
2
aircraftandequipmentsale.htm
APOLLO
AIRCRAFT AND EQUIPMENT SALE AGREEMENT
EXHIBIT
10.1
EXECUTION
COPY
AIRCRAFT
AND EQUIPMENT SALE AGREEMENT
BETWEEN
PLM
FINANCIAL SERVICES, INC.,
Not
in its individual capacity but solely as owner trustee
(“Seller”),
AND
APOLLO
AVIATION CAPITAL, L.L.C. (“Buyer”)
Dated
as of December 4, 2006
1
TABLE
OF CONTENTS
ARTICLE
1: SUBJECT MATTER OF SALE
ARTICLE
2: PURCHASE PRICE AND PAYMENT
ARTICLE
3: INSPECTION AND TECHNICAL ACCEPTANCE
ARTICLE
4: CLOSING DATE; DELIVERY OF AIRCRAFT AND CONDITIONS PRECEDENT
ARTICLE
5: REPRESENTATIONS AND WARRANTIES, LIMITATIONS AND DISCLAIMERS
ARTICLE
6: INDEMNIFICATION
ARTICLE
7: INSURANCE
ARTICLE
8: EXCUSABLE DELAY
ARTICLE
9: MISCELLANEOUS13
SCHEDULE
I: DEFINITIONS
SCHEDULE
II: SPARES PACKAGE
SCHEDULE
III: SELLER'S BANK ACCOUNT INFORMATION
SCHEDULE
IV: CONTACT INFORMATION FOR NOTICES
SCHEDULE
V: INSURANCE REQUIREMENTS
SCHEDULE
VI: ENGINE TIMES
EXHIBIT A:
WARRANTY XXXX OF SALE
EXHIBIT B:
CERTIFICATE OF TECHNICAL ACCEPTANCE
EXHIBIT C:
NON-INCIDENT LETTER
2
AIRCRAFT
AND EQUIPMENT SALE AGREEMENT
THIS
AIRCRAFT AND EQUIPMENT SALE AGREEMENT dated December 4, 2006 (this “Agreement”)
is between PLM FINANCIAL SERVICES, INC., a corporation organized and existing
under the laws of the State of Delaware (“PLM”), not in its individual capacity
but solely as owner trustee under the N907TW Trust and the N911TW and N912TW
Trust (in each case, "Seller"), and APOLLO AVIATION CAPITAL, L.L.C., a limited
liability company formed under the laws of the State of Delaware (“Buyer”).
In
consideration of their mutual promises and undertakings set forth below, and
intending to be legally bound hereby, the parties agree as follows:
ARTICLE
1: SUBJECT MATTER OF SALE
Subject
to all of the provisions of this Agreement, Seller agrees to sell and deliver
to
Buyer, and Buyer agrees to purchase from Seller, the Airframes, the Engines
and
the Spares Package, each as defined and more particularly described on Schedule
I attached hereto (the Airframes, Engines and Spares Package are collectively
referred to as the “Equipment”). Certain capitalized terms used herein are
defined in Schedule I attached hereto.
ARTICLE
2: PURCHASE PRICE AND PAYMENT
A. Base
Purchase Price.
The
aggregate purchase price for the Equipment shall be US$5,795,000.00 (the
“Aggregate Base Purchase Price”). The Aggregate Base Purchase Price shall be
allocated to the different components comprising the Equipment as follows (that
portion of the Aggregate Base Purchase Price allocated to a component is
hereinafter referred to as the “Applicable Base Purchase Price”) for such
component:
| |
Component
| |
Applicable
Base Purchase Price
| |
| | | | | |
| |
Airframe
49165
| |
US$
335,000.00
| |
| |
Airframe
49182
| |
US$
175,000.00
| |
| |
Airframe
49183
| |
US$
410,000.00
| |
| |
Engine
709760
| |
US$
600,000.00
| |
| |
Engine
708556
| |
US$1,050,000.00
| |
| |
Engine 717900
| |
US$1,075,000.00
| |
| |
Engine
708582
| |
US$
575,000.00
| |
| |
Engine
718566
| |
US$
925,000.00
| |
| |
Engine 709710
| |
US$
600,000.00
| |
| |
Spares
Package
| |
US$
50,000.00
| |
B. Engine
Purchase Price Adjustment.
Schedule VI specifies the flight hours for each of the Engines as of August
7,
2006 (for each Engine, the flight hours specified on Schedule VI are hereinafter
referred to as the “Base Flight Hours”). As of the Closing Date (as defined in
Article 4.A hereof) for each Engine, for each flight hour in excess of the
Base
Flight Hours applicable to such Engine, the Applicable Base Purchase Price
for
such Engine shall be reduced by the product of the aggregate number of such
excess flight hours for such Engine multiplied by US$100.00 per flight hour
(for
each Engine, such product is hereinafter referred to as the “Engine Purchase
Price Adjustment”) (for each Engine, the Applicable Base Purchase Price minus
the Engine Purchase Price Adjustment is hereinafter referred to as the “Purchase
Price”). Notwithstanding the foregoing, if a discrepancy is found in an Engine
prior to the Closing Date and (a) such Engine is either overhauled or replaced
in accordance with the terms hereof and (b) either the value or utility of
such
overhauled Engine increases as a result of such overhaul or the value or utility
of the replacement engine is greater than that of the original Engine, then
the
Purchase Price Adjustment for such Engine shall not be subtracted from the
Applicable Base Purchase Price for such Engine and Buyer and Seller shall
consult in good faith to determine the appropriate purchase price adjustment
for
such Engine, in which case the Purchase Price subject to such adjustment shall
then constitute the Purchase Price for such Engine.
3
C. Spares
Package Purchase Price Adjustment.
Schedule II specifies the parts composing the Spares Package as of August 15,
2006. Seller represents to Buyer that the Spares Package has been placed on
consignment with GA Telesis Turbine Technologies, LLC, a
limited
liability company organized and existing under the laws of the State of a
Florida (the “Consignee”). On or prior to the Closing Date, Seller, Buyer and
Consignee shall enter into an assignment and acknowledgement agreement (the
“Assignment and Acknowledgment”) which specifies, which parts, if any, of the
Spares Package have been sold or added since August 15, 2006, (such previously
sold parts being hereinafter referred to as the “Sold and Added Parts”) (the
Spares Package less or plus, as applicable, any Sold and Added Parts are
hereinafter referred to as the “Final Spares Package”). The Applicable Base
Purchase Price for the Spares Package: (a) shall be reduced by the aggregate
sum
of the net proceeds paid by the Consignee to the Seller resulting from the
sale
of any of the Sold Parts (the “Spare Parts Reduction”) and (b) shall be
increased by the aggregate sum of the Agreed Value (as defined below) of all
of
the Added Parts (the “Spare Parts Increase”) (the difference between the Spare
Parts Reduction and the Spare Parts Increase is hereinafter referred to as
the
“Spares Purchase Price Adjustment”) (for the Spares Package, the Applicable Base
Purchase Price minus or plus, as applicable, the Spares Purchase Price
Adjustment is hereinafter referred to as the “Purchase Price”). The “Agreed
Value” for the Added Parts shall mean the amount agreed upon by the Buyer and
Seller, acting in good faith, of the Added Parts.
D. Security
Deposit.
Prior
to the date hereof, for each Aircraft, Buyer has delivered to the Seller a
security deposit in the amount of US$100,000.00 (an “Aircraft Deposit”), with
the total aggregate amount of all such Aircraft Deposits equaling US$300,000.00.
For each Aircraft, the Aircraft Deposit shall be applied against the Purchase
Price for such Aircraft on the Closing Date for such Aircraft unless one of
the
following events occurs, in which case, such Aircraft Deposit applicable to
a
particular Aircraft shall be refundable to Buyer with five business days of
receipt by Seller of Buyer’s written request for the return of such Aircraft
Deposit:
| |
(a)
|
the
Buyer sends Seller the Initial Inspection Notice (as defined in Article
3.A hereof) in which it rejects the Aircraft on or prior to November
10;
|
| |
(b)
|
an
Event of Loss occurs with respect to such Aircraft;
|
4
| |
(c)
|
Seller
fails to comply with any of the conditions precedent set forth
in Article
4.E hereof prior to the Final Sale Date; or;
|
| |
(d)
|
Seller
terminates this Agreement with respect to a particular Aircraft
pursuant
to Section 4.A.
|
E. Payment
of Purchase Price Balance.
Subject
to the terms of this Agreement, on the Closing Date for each Aircraft or for
the
Final Spares Package, Seller shall pay to Buyer an amount equal to the Purchase
Price for such Aircraft or Spares Package less the amount of the applicable
Aircraft Deposit. For the avoidance of doubt, no deposit is applicable to the
Final Spares Package.
F. Account.
All
amounts payable by Buyer to Seller hereunder shall be made in immediately
available funds via wire transfer to Seller’s account specified on Schedule III
attached hereto.
G. Sales
Tax.
All
sales taxes arising from the transaction described in this Agreement shall
be
for the account of Buyer, excluding any taxes on the income received by Seller
from that transaction. Buyer shall indemnify Seller for all such sales taxes
against Seller for which Buyer is responsible pursuant to the immediately
preceding sentence.
ARTICLE
3: INSPECTION AND TECHNICAL ACCEPTANCE
A. Initial
Inspection.
Seller
has provided or shall provide or has caused or shall cause the Previous Operator
to provide the Buyer with access to all logs, manuals, certificates and data
and
inspection, modification, overhaul and repair records for each of the Airframes
and Engines to confirm that such records are in compliance with applicable
rules
and regulations of the FAA governing the Previous Operator (the “Records”) for
the Aircraft. After receiving access to the Records, Buyer shall use its
reasonable efforts to complete its inspection of the Records promptly (the
“Initial Inspection”). Within five days of completion of the Initial Inspection
for each Aircraft, Buyer shall send to Seller a written notice (the “Initial
Inspection Notice”) of Buyer’s rejection or preliminary acceptance of such
Aircraft. Buyer may reject an Aircraft, if Buyer, in its sole discretion,
determines that the Records for any of the Engines, the APU or the landing
gear
are not acceptable to Buyer; provided, however, that if the Records for the
Engines, the APU and the landing gear are acceptable to the Buyer (in its sole
discretion), Buyer may not reject such Aircraft if the Records relating to
any
other parts or components are in compliance with the rules and regulations
of
the FAA governing the Previous Operator. The Buyer has waived its right to
inspect the Spares Package and the records relating to the Spares Package.
If
Buyer rejects one or more of the Aircraft pursuant to the Initial Inspection
Notice, neither Buyer nor Seller shall have any further obligation to the other
under this Agreement with respect to such Aircraft, provided, that, in the
case
of a rejection by Buyer of an Aircraft, Seller shall return the applicable
Aircraft Deposit to Seller in accordance with Article 2 hereof. For the
avoidance of doubt, Buyer’s rejection of one or more Aircraft shall not affect
the rights of Buyer and Seller hereunder with respect to the other Aircraft
which the Buyer accepts pursuant to the Initial Inspection Notice.
Notwithstanding the immediately preceding sentence, in the event that Buyer
does
not execute Certificates of Technical Acceptance (defined below) on two or
more
Aircraft, Buyer shall have no further obligation to acquire the Spares Package
from Seller. Notwithstanding the foregoing, as of the date hereof, Buyer has
completed the Initial Inspection of Airframe 49165, Airframe 49183, Xxxxxxxx
00000, Engine 709710, Engine 717900, Engine 708582 and Engine 708556 and will
deliver the Initial Inspection Notice for Aircraft 49183 and Aircraft 49165
simultaneously herewith.
5
B. Tests.
Seller
either has caused the Previous Operator to complete, or will cause the Previous
Operator to complete, in the presence of Buyer, the following
actions:
| (i) |
a
full cold and hot section video borescope inspection for each Engine
in
accordance with manufacturer specification (the “Borescope
Inspection”);
|
| (ii) |
ground
functional checks for each Airframe to verify the serviceability
of each
Aircraft to the extent possible with no engines attached (“Ground
Functional Check”);
|
| (iii) |
full
on-wing power assurance run for each Engine in accordance with the
Previous Operator’s maintenance program (“On-Wing Power Assurance Runs”);
provided, however, that Seller shall not be required to cause Previous
Operator to perform such On-Wing Power Assurance Run for any Engine
that
is delivered to Buyer in Tulsa, Oklahoma in accordance with Section
4.B;
and
|
| (iv) |
The
equivalent of an On-Wing Power Assurance Run performed in engine
test cell
for each Engine in accordance with the Previous Operator’s maintenance
program (“Test Cell Runs”); provided, however, that Seller shall not be
required to cause Previous Operator to perform such Test Cell Run
for any
Engine for which an On-Wing Power Assurance Run has been completed.
|
C. Technical
Acceptance.
In the
event that upon completion of the Initial Inspection, the Borescope Inspection,
the Ground Functional Check, the On-Wing Power Assurance Runs and the Test
Cell
Runs (collectively, the “Maintenance Tests”), Seller, at its own cost, shall
correct, or cause the Previous Operator to correct any Discrepancies as set
forth in this Section. For purposes of this Agreement, “Discrepancies shall
mean: (i) with respect to the Maintenance Tests (other than the Initial
Inspection) on any Engines, any discrepancies revealed that are outside the
limits permitted by the Previous Operator’s maintenance program (each, an
“Engine Test Discrepancy”), (ii) with respect to the Initial Inspection of the
records with respect to any Engine, any discrepancies revealed from the Previous
Operator’s or the manufacturer’s maintenance programs, at Buyer’s discretion
(each an “Engine Records Discrepancy”), (iii) with respect to the Maintenance
Tests (other than the Initial Inspection) on any Airframe, any discrepancies
revealed that are outside the limits permitted by the Previous Operators
maintenance program (“Airframe Test Discrepancies”), (iv) with respect to the
Initial Inspection of the records with respect to any Airframe, any
discrepancies revealed from the Previous Operator’s or the manufacturer’s
maintenance programs, at Buyer’s discretion (each an “Airframe Records
Discrepancy”), and (v) in the case of APU and landing gear, any discrepancies
revealed that are outside the limits of the manufacturer’s maintenance manual
(“APU/Landing Gear Discrepancies”), provided, however, that discrepancies as to
the traceability documentation for the Landing Gear shall not be considered
“Discrepancies” and Buyer acknowledges that such discrepancies have already been
compensated for in the Purchase Price. Seller, at its own cost, shall correct,
or cause the Previous Operator to correct any such Discrepancies in the
following manner:
6
| (i) |
The
Engine Record Discrepancies and Airframe Record Discrepancies shall
be
corrected to the Buyer’s satisfaction, provided, however, that the
corrections shall not exceed standards customary for such corrections
within the commercial aviation
industry.
|
| (ii) |
The
Engine Test Discrepancies shall be corrected to the Buyer’s satisfaction
(provided, however, that the corrections shall not exceed standards
customary for such corrections within the commercial aviation industry)
or
upon the issuance of an FAA form 8130-3 for each of the applicable
Engines
indicating each Engine is serviceable for continued use and the delivery
of the same to Buyer; provided, however, that the Previous Operator
shall
not discriminate against such Engine and such correction shall be
consistent with the Previous Operator’s correction of similar
discrepancies of other engines in the Previous Operator’s fleet of the
same make and model as the Engine
|
| (iii) |
The
APU/Landing Gear Discrepancies shall be corrected to the Buyer’s
satisfaction, provided, however, that the corrections need not exceed
standards customary for such corrections within the commercial aviation
industry.
|
| (iv) |
The
Airframe Test Discrepancies shall be corrected in accordance with
the
Previous Operator’s maintenance program, provided, however, that the
Previous Operator shall not discriminate against such Airframes and
such
correction shall be consistent with the Previous Operator’s correction of
similar discrepancies of other airframes in the Previous Operator’s fleet
of the same make and model as the Airframe;
|
Buyer
hereby acknowledges that, as of the date hereof, Buyer has inspected to Buyer’s
satisfaction and Seller has corrected to Buyer’s satisfaction, all Discrepancies
on Airframe 49165, Airframe 49183, Airframe 49182, Engine 709710, Engine 717900,
Engine 708582 and Engine 708556 with the sole exceptions of the Burn
Certificates as to each of the Airframes. Promptly upon the correction of all
of
the Discrepancies with respect to any Aircraft, and no later than one day before
the applicable Closing Date, Buyer shall execute and deliver to Seller a
certificate of technical acceptance in the form of Exhibit B hereto (the
“Certificate of Technical Acceptance”). BUYER ACKNOWLEDGES THAT SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE CONDITION OF THE AIRCRAFT
AND EQUIPMENT AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OF SELLER,
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.A HEREOF AND IN THE BILLS OF SALE
ARE
HEREBY DISCLAIMED BY SELLER AND BUYER, AND BUYER’S ACCEPTANCE OF THE AIRCRAFT
AND EQUIPMENT ARE MADE BASED ON BUYER’S OWN INSPECTIONS AND NOT BASED ON ANY
REPRESENTATION OR WARRANTY OF SELLER OTHER THAN THOSE EXPRESSLY SET FORTH IN
SECTION 5.A AND IN THE BILLS OF SALE.
7
ARTICLE
4: CLOSING DATE; DELIVERY OF AIRCRAFT AND CONDITIONS PRECEDENT
A. Closing
Date.
Subject
to the terms and conditions of this Agreement, Seller and Buyer shall complete
the sale of all of the Equipment in one or more closings on one or more dates
(each date on which the completion of the sale of an Aircraft or the Spares
Package occurs, is hereinafter referred to as a “Closing Date”) occurring on or
prior to December 15, 2006 or such later date mutually agreed upon by Seller
and
Buyer (the “Final Sale Date”). If, after Buyer delivers to Seller the
Certificate of Technical Acceptance for an Aircraft (it being understood that
Seller has already accepted the condition of the Spares Package without
necessity of delivering such a Certificate), Seller tenders the applicable
Equipment and related Records corresponding thereto for delivery to Buyer and
satisfies all of the Buyer’s conditions precedent set forth in Article 4, and
the closing for an Aircraft does not occur on or prior to the Final Sale Date
through no fault of Seller, neither party shall have any further obligation
to
the other; provided, however, that Seller shall be entitled to retain the
Aircraft Deposit for such Aircraft. If prior to the Closing Date for an
Aircraft, such Aircraft suffers Material Damage (as defined in the penultimate
sentence of this Section) or an Event of Loss (as defined in the last sentence
of this Section), Seller, at its option, may elect to either repair such
Material Damage or terminate this Agreement. If Seller repairs such Material
Damage, provided all of the conditions precedent below have been satisfied,
Buyer shall purchase such Aircraft in accordance with the terms hereof.
Notwithstanding the foregoing, following the repair by Seller of an Aircraft
that has suffered Material Damage (the “Repaired Aircraft”), Buyer shall have
the right to inspect the Repaired Aircraft in accordance with Section 3 hereof
and Buyer shall have the right to technically reject the Repaired Aircraft
if it
does not comply with the terms thereof. If Seller elects to terminate this
Agreement, with respect to an Aircraft, after the occurrence of Material Damage
to one of the Aircraft, Seller shall give written notice thereof to Buyer and
neither party shall have any further obligation to the other under this
agreement with respect to such Aircraft; provided, however that Seller shall
return the applicable Aircraft Deposit to Buyer in accordance with the terms
of
Article 2 hereof. “Material Damage” shall mean (i) with respect to any Aircraft,
damage to such Aircraft prior to the delivery thereof which, in the mutually
reached reasonable estimate of Seller and Buyer, would have a repair cost in
excess of US$100,000.00 and (ii) with respect to the Final Spares Package,
damage to any part or parts that materially decrease the value of such part
or
parts. In the event of Material Damage to one or more parts, such parts shall
be
removed from the Final Spares Package and the parties shall decrease the
Purchase Price by a mutually agreeable value for such parts. “Event of Loss,”
with respect to each Aircraft, means the total loss (including constructive
total or arranged loss), theft, hijacking, compulsory acquisition, confiscation,
destruction or damage to such Aircraft to the extent which, in the reasonable
opinion of the insurer with whom such Aircraft is insured, renders repair
impractical or uneconomical or any event which with the passing of time or
fulfillment of any condition would result in any of the foregoing
8
B. Delivery
Location.
Seller
and Buyer acknowledge that, at the time of the closing for each Aircraft, the
Engines for such Aircraft will not be attached to the Airframe. The location
where each Airframe will be located at the time of the closing (each such
location being hereinafter referred to as an “Airframe Delivery Location”), the
location where each of the Engines will be located at the time of closing (each
such location being hereinafter referred to as an “Engine Delivery Location”)
and the location where the Final Spare Package will be located on the applicable
Closing Date, each with their applicable Records, shall be as set forth
below:
| |
Equipment
| |
Delivery
Location
| |
| | | | | |
| |
Airframe
49165
| |
Roswell,
New Mexico
| |
| |
Airframe
49182
| |
Xxxxxxx,
Xxx Xxxxxx
| |
| |
Xxxxxxxx
00000
| |
Xxxxxxx,
Xxx Xxxxxx
| |
| |
Airframe
49165 Seats
| |
Roswell,
New Mexico (in storage with AAR Roswell, Roswell, New
Mexico
| |
| |
Engine
709760
| |
Tulsa,
Oklahoma, at Seller’s discretion
| |
| |
Engine
708556
| |
Tulsa,
Oklahoma, at Seller’s discretion
| |
| |
Engine 717900
| |
Tulsa,
Oklahoma, at Seller’s discretion
| |
| |
Engine
708582
| |
Tulsa,
Oklahoma, at Seller’s discretion
| |
| |
Engine
718566
| |
Tulsa,
Oklahoma, at Seller’s discretion
| |
| |
Engine 709710
| |
Tulsa,
Oklahoma, at Seller’s discretion
| |
| |
Final
Spares Package
| |
At
the facilities of Consignee, 0000 XX 00xx
Xxxxxx, Xxxx Xxxxxxxxxx, XX 00000
| |
Notwithstanding
anything to the contrary, in the event any Engine associated with an applicable
Aircraft is unavailable on the applicable Closing Date, Seller may substitute
another of the Engines for such unavailable Engine, provided, however, that
Seller may only substitute a Xxxxx & Whitney model JT8D-217C Engine for
another Xxxxx & Xxxxxxx model JT8D-217C Engine and Seller may only
substitute a Xxxxx & Whitney model JT8D-217A Engine for another Xxxxx &
Xxxxxxx model JT8D-217A Engine. At Buyer’s request, the Engines will each be
delivered with Previous Operator Engine Stands and that Previous Operator shall
at all times retain title to the Previous Operator Engine Stands. Buyer shall,
within 25
business days of each Closing Date, deliver its own engine stands to the
Delivery Location (the date on which Buyer’s engine stands arrive at the
Delivery Location is hereinafter referred to as the “Engine Stand Date”), then,
promptly after the Engine Stand Date, Seller will cause the Previous Operator
to
remove the Engine(s) from the Previous Operator’s Engine Stand(s) and load such
Engines onto Buyer’s engine stands. Thereafter, Buyer shall promptly remove the
Engine(s) from the Delivery Location. Additionally, the Previous Operator shall
provide for Buyer’s use (i) four front bolts - AA P/N BOL3001 for each Engine
and (ii) two aft bolts - AA P/N BOL3000 for each Engine.
9
C. Seller’s
Condition’s Precedent for the Sale of Each Aircraft.
Seller
shall be obligated to transfer title to any Aircraft to Buyer only upon the
satisfaction of the following conditions precedent:
| (1) |
Seller’s
receipt of this Agreement, duly executed by
Buyer;
|
| (2) |
Seller’s
receipt of a duly executed Certificate of Technical Acceptance for
such
Aircraft in the form of Exhibit B attached hereto duly executed by
Buyer;
|
| (3) |
Proof
of exemption from or payment by Buyer of sales, use, VAT, or similar
tax;
|
| (4) |
Seller’s
receipt of the Purchase Price for such Aircraft;
|
| (5) |
Seller’s
receipt of the Insurance Certificates, if necessary, satisfying the
requirements of Article 7 herein;
|
| (6) |
Such
Aircraft shall not have suffered (i) Material Damage that the Seller
elects not to repair or (ii) an Event of
Loss;
|
| (7) |
Seller’s
receipt of a fully executed Lease Termination Agreement from the
Previous
Operator and the filing of a FAA short form lease termination document
with the FAA;
|
| (8) |
Seller’s
receipt of an acceptable airline non-incident letter, in the form
attached
as Exhibit C hereto in respect to each Airframe and Engine from the
Previous Operator;
|
D. Seller’s
Condition’s Precedent for the Sale of Final Spares Package.
Seller
shall be obligated to transfer title to Spares Package to Buyer only upon the
satisfaction of the following conditions precedent:
|
|
(1)
|
Seller’s
receipt of proof of exemption from or payment by Buyer of sales,
use, VAT,
or similar tax;
|
|
|
(2)
|
Seller’s
receipt of the Purchase Price for the Final Spares Package; and
|
| |
(3)
|
None
of the parts constituting the Final Spares Package shall have suffered
an
Event of Loss or Material Damage unless such parts are removed from
the
Final Spares Package and the Purchase Price adjusted in accordance
with
Section 4.A hereof.
|
| |
(4)
|
Seller’s
receipt of a fully executed Assignment and Assumption Agreement signed
by
Seller, Buyer and Consignee pursuant to which Seller assigns title
to the
Final Spares Package to Buyer, Buyer accepts such title and Consignee
consents to the assignment, in addition to the terms specified by
Section
2(C);.
|
10
E. Buyer’s
Conditions Precedent for the Purchase of each Aircraft.
Buyer
shall be obligated to pay to Seller the Purchase Price for each Aircraft only
upon satisfaction of the following conditions precedent:
| |
(1)
|
Buyer
shall have provided a Certificate of Technical Acceptance as to such
Aircraft and there has been no subsequent Event of Loss or Material
Damage;
|
| |
(2)
|
Buyer’s
receipt of executed Bills of Sale for the Airframe and each Engine
in
substantially the Form of Exhibit A attached
hereto;
|
| |
(3)
|
Buyer’s
receipt of the executed FAA Form 8050-2 Xxxx of Sale (“FAA Xxxx of Sale”)
for such Aircraft;
|
| |
(4)
|
Buyer’s
receipt of an FAA Form 8130-3 for each
Engine;
|
| |
(5)
|
Buyer’s
receipt of a non-incident letter in substantially the form attached
hereto
as Exhibit C hereto signed by the Previous
Operator;
|
| |
(6)
|
Buyer’s
receipt of a tie-in letter in substantially the form attached hereto
as
Exhibit D hereto signed by the Seller;
|
| |
(7)
|
Buyer’s
receipt of a lease termination or release signed by the Previous
Operator
that is acceptable to FAA counsel for purposes of releasing the aircraft
from the terms of the lease with the Previous Operator;
|
| |
(8)
|
Buyer’s
receipt an opinion from FAA counsel stating among other things that
(i)
Seller is the registered owner of such Aircraft; (ii) the Aircraft
is free
and clear of any and all any mortgages, pledges, security interests,
liens, claims, encumbrances, rights of others of record or other
charges
or rights of others of any kind (“Liens”) with the FAA and the
International Registry maintained pursuant to the Convention
On International Interests, In Mobile Equipment, and the Aircraft
Protocol
thereto and matters specific to Aircraft equipment signed at Capetown
on
16 November 2001 (the “International Registry”);
and (iii) a Notice of Sale has been filed with the International
Registry;
|
| |
(9)
|
Buyer’s
receipt of a copy of the FAA xxxx of sale for the Airframe transferring
title from the prior owner to Seller;
|
| |
(10)
|
Buyer’s
receipt of a Guaranty signed and delivered by the N907TW Guarantor
for
Aircraft 49165 and the N911TW and N912TW Guarantor for Aircraft 49182
and
Aircraft 49183 in form and substance acceptable to Buyer;
|
11
| |
(11)
|
title
insurance for such Aircraft from an insurance company acceptable
to Buyer;
provided, however, that if all other conditions precedent under
this
Section 4.E have been satisfied, Buyer shall not delay the closing
for
such Aircraft if it is unable to obtain such title insurance
on or prior
to the Closing Date for such Aircraft;
and
|
| |
(12)
|
a
letter from each of the maintenance facilities where the applicable
Airframe and Engines are located confirming that each such maintenance
facility does not have a mechanic’s lien or other interest in such
Airframe or Engines.
|
F. Buyer’s
Conditions Precedent for the Sale of the Spares Package.
Buyer
shall be obligated to pay to Seller the Purchase Price for the Final Spares
Package only upon satisfaction of the following conditions
precedent:
| |
(1)
|
Buyer’s
receipt of the executed Xxxx of Sale in substantially the Form of
Exhibit
A attached hereto;
|
| |
(2)
|
Seller’s
receipt of a fully executed Assignment and Assumption Agreement signed
by
Seller, Buyer and Consignee pursuant to which Seller assigns title
to the
Final Spares Package to Buyer, Buyer accepts such title and Consignee
consents to the assignment, in addition to the terms specified by
Section
2(C);
|
| |
(3)
|
The
Final Spares Package shall not have suffered an Event of Loss or
Material
Damage unless such parts are removed from the Final Spares Package
and the
Purchase Price adjusted in accordance with Section 4.A
hereof.
|
G. Transfer
of Title.
With
respect to each Aircraft, upon the delivery by Seller to Buyer of the Xxxx
of
Sale and the FAA Xxxx of Sale, and the delivery by Buyer to Seller of the
Purchase Price and the applicable Certificate of Technical Acceptance (i) title
to the Aircraft shall pass from Seller to Buyer and (ii) risk of loss for the
Aircraft shall pass from Seller to Buyer. With respect to the Spares Package,
upon the delivery by Seller to Buyer of the Xxxx of Sale and the delivery by
Buyer to Seller of the Purchase Price (a) title to the Spares Package shall
pass
from Seller to Buyer and (ii) risk of loss for the Spares Package shall pass
from Seller to Buyer.
ARTICLE
5: REPRESENTATIONS AND WARRANTIES, LIMITATIONS AND DISCLAIMERS
A. Seller’s
Representations.
Seller
hereby represents and warrants to Buyer, as of the date hereof and as of the
time of transfer of each Aircraft and the Spares Package, as
follows:
| (1) |
PLM
is a corporation duly organized, validly existing and in good
standing
under the laws of the state of Delaware. Seller has all requisite
power
and authority to enter into and perform its obligations under
this
Agreement and the other documents referred to herein to which
Seller is a
party (the “Seller
Documents”).
|
| (2) |
PLM
Equipment Growth Fund VI Liquidating Trust is the sole owner participant
under the N907TW Trust. PLM Equipment Growth & Income Fund VII
Liquidating Trust and Professional Lease Management Income Fund I
Liquidating Trust are the sole owner participants under the N911TW
and
N912TW Trust.
|
12
| (3) |
This
Agreement has been, and on or prior to the applicable Closing Date,
the
applicable Seller Documents will have been, duly authorized, executed
and
delivered by Seller. This Agreement constitutes, and the other Seller
Documents, when executed and delivered, will constitute, the legal,
valid
and binding obligation of Seller, enforceable against Seller in accordance
with its terms, except as enforcement of the terms hereof and thereof
may
be limited by applicable bankruptcy, insolvency, reorganization,
liquidation, moratorium or similar laws affecting enforcement of
creditors’ rights generally, and by general principles of
equity.
|
| (4) |
None
of the execution, delivery or performance by Seller of this Agreement,
or
any of the other Seller Documents, or the consummation by Seller
of the
transactions contemplated hereby and thereby, will contravene any
applicable law binding on Seller or any of its property, or any provision
of the certificate of incorporation or by-laws of PLM, or will result
in a
breach of, or constitute a default under, or contravene any provision
of,
any mortgage, deed of trust, indenture or other material agreement
or
instrument to which PLM or Seller is a party or by which PLM or Seller
or
all or any of its property or assets may be
bound.
|
| (5) |
None
of the execution, delivery or performance by Seller of this Agreement
or
the other Seller Documents, or the consummation by Seller of the
transactions contemplated hereby and thereby, requires the consent
or
approval of, the giving of notice to, the registration, recording
or
filing of any documents with, or the taking of any other action in
respect
of, any United States federal or state governmental authority or
the terms
and provisions of this Agreement or any Seller Document, except such
as
have been, or will be, obtained, effected, waived or paid on or prior
to
the Closing Date.
|
| (6) |
Seller
is the sole legal owner of the Equipment. On each Closing Date, Seller
will transfer to Buyer good and marketable title to the applicable
Aircraft or the Final Spares Package, as the case may be, free and
clear
of any and all Liens.
|
| (7) |
There
are no pending or, to the best of Seller’s knowledge, threatened
investigations, suits or proceedings against Seller or affecting
Seller or
its properties, that, if determined adversely, would adversely affect
all
or any portion of the Equipment or the consummation of the transaction
contemplated by, or performance by Seller of its obligations under
this
Agreement.
|
| (8) |
Seller
is not in breach of any law that would have an adverse effect on
Seller or
on Seller’s ability to perform its obligations under, this Agreement or
the other Seller Documents.
|
| (9) |
No
Event of Loss has occurred with respect to any of the
Equipment.
|
13
B. Buyer’s
representations.
Buyer
hereby represents and warrants to Seller as of the date hereof and as of the
time of transfer of each Aircraft and the Spares Package, as follows:
| |
(1)
|
Buyer
is a limited liability company duly organized, validly existing and
in
good standing under the laws of the state of Delaware. Buyer has
all
requisite power and authority to enter into and perform its obligations
under this Agreement and the other documents referred to herein to
which
Buyer is a party (the “Buyer
Documents”).
|
| |
(2)
|
This
Agreement has been, and on or prior to the applicable Closing Date,
the
applicable Buyer Documents will have been, duly authorized, executed
and
delivered by Buyer. This Agreement constitutes, and the other Buyer
Documents, when executed and delivered, will constitute, the legal,
valid
and binding obligation of Buyer, enforceable against Buyer in accordance
with its terms, except as enforcement of the terms hereof and thereof
may
be limited by applicable bankruptcy, insolvency, reorganization,
liquidation, moratorium or similar laws affecting enforcement of
creditors’ rights generally, and by general principles of
equity.
|
| |
(3)
|
None
of the execution, delivery or performance by Buyer of this Agreement,
or
any of the other Buyer Documents, or the consummation by Buyer of
the
transactions contemplated hereby and thereby, will contravene any
applicable law binding on Buyer or any of its property, or any provision
of the certificate of incorporation or by-laws of Buyer, or will
result in
a breach of, or constitute a default under, or contravene any provision
of, any mortgage, deed of trust, indenture or other material agreement
or
instrument to which Buyer is a party or by which Buyer or all or
any of
its property or assets may be
bound.
|
| |
(4)
|
None
of the execution, delivery or performance by Buyer of this Agreement
or
the other Buyer Documents, or the consummation by Buyer of the
transactions contemplated hereby and thereby, requires the consent
or
approval of, the giving of notice to, the registration, recording
or
filing of any documents with, or the taking of any other action in
respect
of, any United States federal or state governmental authority or
the terms
and provisions of this Agreement or any Buyer Document, except such
as
have been, or will be, obtained, effected, waived or paid on or prior
to
the Closing Date.
|
| |
(5)
|
There
are no pending or, to the best of Buyer’s knowledge, threatened
investigations, suits or proceedings against Buyer or affecting Buyer
or
its properties, that, if determined adversely, would adversely affect
the
consummation of the transaction contemplated by, or performance by
Buyer
of its obligations under this
Agreement.
|
| |
(6)
|
Buyer
is not in breach of any law that would have an adverse effect on
Buyer or
on Buyer’s ability to perform its obligations under, this Agreement or the
other Buyer Documents.
|
14
C. Assignment
of Warranties and Assignment of Rights Under Lease with Previous
Operator.
Effective on delivery of each Aircraft to Buyer on the applicable Closing Date,
Seller hereby assigns to Buyer any warranties applicable to such Aircraft from
the Aircraft manufacturer, any maintenance facility and any parts manufacturer
that Seller has with respect to the Aircraft, to the extent that such warranties
are assignable. Upon
the
request of Buyer and at Buyer’s sole cost and expense, Seller shall use its best
efforts to give Buyer aid and assistance in enforcing the rights of Buyer
arising under such warranties or other rights. Upon request of Buyer, Seller
shall give notice to any such manufacturers or maintenance facility of the
assignment of such warranties and/or other rights to Buyer.
D. LIMITATIONS
AND DISCLAIMERS.
EACH
AIRCRAFT AND THE FINAL SPARES PACKAGE ARE SOLD AND DELIVERED TO BUYER “AS IS”
AND “WHERE IS”, AND, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN
SECTION 5.A HEREOF AND IN THE BILLS OF SALE, WITHOUT ANY REPRESENTATION,
GUARANTEE OR WARRANTY OF SELLER EXPRESS OR IMPLIED, OF ANY KIND, ARISING BY
LAW
OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE ABOVE, BUYER
UNCONDITIONALLY AGREES THAT EACH AIRCRAFT AND THE FINAL SPARES PACAKGE ARE
SOLD
AND PURCHASED IN AN “AS IS, WHERE IS” CONDITION AND “WITH ALL FAULTS” AS AT THE
APPLICABLE CLOSING DATE, AND, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
SET
FORTH IN SECTION 5.A HEREOF AND IN THE BILLS OF SALE, NO TERM, CONDITION,
WARRANTY, REPRESENTATION OR COVENANT OF ANY KIND HAS BEEN ACCEPTED, MADE OR
IS
GIVEN BY SELLER OR ITS SERVANTS OR AGENTS IN RESPECT OF THE VALUE, QUALITY,
DURABILITY, DATE PROCESSING, CONDITION, DESIGN, OPERATION, DESCRIPTION,
MERCHANTABILITY OR FITNESS FOR USE OR PURPOSE OF ANY AIRCRAFT OR THE FINAL
SPARES PACKAGE, AS TO THE ABSENCE OF LATENT, INHERENT OR OTHER DEFECTS (WHETHER
OR NOT DISCOVERABLE), AS TO THE COMPLETENESS OR CONDITION OF THE RECORDS
RELATING TO SUCH AIRCRAFT OR THE FINAL SPARES PACKAGE, AND/OR AS TO THE ABSENCE
OF ANY INFRINGEMENT OF ANY PATENT, COPYRIGHT, DESIGN, OR OTHER PROPRIETARY
RIGHTS. ALL TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS (OR OBLIGATION
OR
LIABILITY, IN CONTRACT OR IN TORT) IN RELATION TO ANY ONE OR MORE OF THOSE
MATTERS, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, ARE EXPRESSLY
EXCLUDED.
ARTICLE
6: INDEMNIFICATION
A. Buyer’s
Indemnification Obligations.
With
respect to each Aircraft and the Final Spares Package, Buyer
will indemnify the Seller Indemnitees (defined below) in full on demand in
respect of all losses,
liabilities, claims, proceedings, penalties, judgments, damages, costs and
expenses (“Seller’s Losses”)
suffered or incurred by Seller, its affiliated companies, funds and
beneficiaries, lenders and their respective officers, managers, directors,
shareholders, employees, agents, successors, assigns (each a “Seller Indemnitee”
and, collectively, the “Seller Indemnitees”) arising out of or connected in any
way with:
15
| (1) |
any
event, act or omission occurring on or after the Closing Date, including,
without limitation, related to loss or destruction of or damage to
any
property, or death or injury to any person caused by, relating to
or
arising from or out of (in each and every case whether directly or
indirectly) the purchase, manufacture, ownership, possession,
registration, storage, performance, transportation, management, sale,
control, inspection, use or operation, design, condition, testing,
delivery, leasing, maintenance, repair, service, modification, overhaul,
replacement, removal or redelivery of such Aircraft or the Spares
Package;
or
|
| (2) |
the
breach of, or any misrepresentation by the Buyer of, any of its covenants,
representations or warranties set forth in this Agreement.
|
B. Limitation
on Buyer’s Indemnification Obligations.
Notwithstanding Paragraph A of this Article 6, the Buyer’s obligation to
indemnify Seller Indemnitees for Seller’s Losses shall
not
extend to the following:
| |
(1)
|
Seller’s
Losses that arise on or prior to the applicable Closing Time
on the
applicable Closing Date;
|
| |
(2)
|
Seller’s
Losses that are caused by the wilful misconduct or gross negligence
of the
Seller Indemnitee.
|
C. Seller’s
Indemnification Obligations.
With
respect to each of the aircraft and the Final Spares Package, Seller
will indemnify the Buyer Indemnitees (defined below) in full on demand in
respect of all losses,
liabilities, claims, proceedings, penalties, judgments, damages, costs and
expenses (“Buyer’s Losses”)
suffered or incurred by Buyer, its lenders, shareholders, and their respective
affiliates, and their respective officers, managers, directors, members,
shareholders, employees, agents, successors and assigns (each a “Buyer
Indemnitee” and, collectively, the “Buyer Indemnitees”) arising out of or
connected in any way with:
| |
(1)
|
any
event, act or omission occurring prior to the Closing Date, including,
without limitation, related to loss or destruction of or damage to
any
property, or death or injury to any person caused by, relating to
or
arising from or out of (in each and every case whether directly or
indirectly) the purchase, manufacture, ownership, possession,
registration, storage, performance, transportation, management, sale,
control, inspection, use or operation, design, condition, testing,
delivery, leasing, maintenance, repair, service, modification, overhaul,
replacement, removal or redelivery of such Aircraft or the Spares
Package;
or
|
| |
(2)
|
the
breach of, or any misrepresentation by the Seller of, any of its
covenants, representations or warranties set forth in this
Agreement.
|
D. Limitation
on Buyer’s Indemnification Obligations.
Notwithstanding Paragraph C of this Article 6, the Seller’s obligation to
indemnify Buyer Indemnitees for Buyer’s Losses shall
not
extend to the following:
16
| |
(1)
|
Buyer’s
Losses that arise on or after the applicable Closing Time on the
applicable Closing Date.
|
| |
(2)
|
Buyer’s
Losses that are caused by the wilful misconduct or gross negligence
of the
Buyer Indemnitee.
|
ARTICLE
7: INSURANCE
With
respect to each aircraft, Buyer shall maintain appropriate policies of insurance
written in English common to the aviation industry, from an insurer which is
internationally recognized as responsible and in good standing and that
specializes in aviation insurance. In the event any Airframe or any Engine
is
operated on or post the Closing Date for a period ending on the earlier of
(a)
the two year anniversary of the date of this Agreement or (b) the date on which
such Airframe or Engine is no longer in operation and begins to be disassembled
for parts, such insurance policies shall include the coverages, terms and
provisions as set forth in Schedule V in a form and scope as is generally
available from the aviation insurance industry. If Buyer sells or leases any
of
the Aircraft to another party, Buyer shall be required to comply with the
insurance requirements of this Article 7 by requiring the subsequent buyer
or
lessee to comply with the obligations in this article. For avoidance of doubt,
provided that Buyer maintains appropriate policies of insurance in accordance
with this Article 7 and Schedule V it shall be in compliance with its
obligations under this Article 7.
ARTICLE
8: EXCUSABLE DELAY
Any
delay
by either party in the performance of its obligations hereunder shall be excused
to the extent caused by factors beyond the reasonable control of, and without
the fault due to negligence of, such party. The party whose performance is
affected shall make all reasonable efforts to minimize the delay provided,
however, that in the event that either party is unable to perform its obligation
hereunder, due to such excusable delay for longer than 45 days, either party
shall have the right to terminate this Agreement by notice in writing to the
party failing to meet its contractual obligation herein.
ARTICLE
9: MISCELLANEOUS
A. Benefits
and Assignments.
This
Agreement shall inure to the benefit of and shall be binding upon each of the
parties hereto and their respective successors and assigns. Buyer may assign
its
right under this Agreement to take title to any Airframe or Engine to a trust
created by Buyer; provided, however, that Buyer shall give Seller reasonable
notice prior to the Closing Date for the applicable Airframe or Engine of
Buyer’s intent to assign such rights.
B. Choice
of Law.
This
Agreement shall be deemed to have been made in
New York,
New York and shall
be
interpreted, and the rights and liabilities of the parties shall be determined
in accordance with the laws of the State of
New York, excluding its choice
of
laws rules except as to perfection of security interests.
17
C. Jurisdiction.
Buyer
hereby agrees that all actions or proceedings arising directly or indirectly
from this Agreement shall be litigated only in the state or federal courts
having situs in
New York County,
New York or the Southern District of
New
York.
D. Service
of Process.
Each of
Seller and Buyer hereby consents to service of process or any other paper upon
it by certified or registered mail, return receipt requested, or by recognized
courier service (FedEx, UPS, DHL, etc.) at its applicable address set forth
in
Schedule IV attached hereto and agrees that such service shall be deemed good,
proper and effective service upon it in any legal action, suit or proceeding
and
shall, to the fullest extent permitted by law. Any party may also serve any
other party to this Agreement by any method recognized by the court where the
action is brought.
E. Waiver
of Jury Trial.
SELLER
AND BUYER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY
ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
F. Costs
and Expenses.
Except
as set forth below, each party shall bear its own fees, costs and expenses
in
connection with the preparation, negotiation and completion of this Agreement
and performance of the transactions contemplated hereby, except as expressly
provided herein.
The fees
of McAfee & Xxxx for the sales contemplated hereunder shall be divided
equally between Buyer and Seller and each of Buyer and Seller shall be
responsible for the payment of 50% of such fees; provided, however, that Seller
shall be responsible for 100% of the fees of McAfee & Xxxx relating to the
initial lien searches, terminating any existing liens for any Airframe or Engine
or correcting any issues concerning the title of any Airframe. Seller shall
be
responsible for any fees and out-of-pocket expenses incurred by the Consignee
in
connection with the sale of the Spares Package. The premium for the title
insurance satisfying the condition precedent set forth in Section 4.E hereof
shall be for the Buyer’s account. In the event of any dispute between the
parties arising from or related to this Agreement, the prevailing party shall
be
entitled to recover its reasonable attorneys’ fees and cost of litigation
including any appeals.
G. Notices.
Any
notice required hereunder shall go to Seller and to Buyer at their respective
addresses set forth on Schedule IV attached hereto or to such other address
as
specified in writing. Such notices shall be sent by hand delivery, certified
or
registered mail, express courier, or facsimile.
H. Waiver.
Waiver
by Seller of any breach of any terms, covenant or condition herein contained
shall not be deemed to be a waiver of such term, covenant or condition or a
waiver of any subsequent breach of the same or any other term, covenant or
condition herein contained.
I. Time
Is Of The Essence.
Time is
of the essence in this Agreement.
18
J. No
Brokers.
The
parties hereto acknowledge that, except for the services of Seller’s Agent, with
respect to which Seller shall be solely responsible, no broker or finder has
been involved, either directly or indirectly, with the transaction contemplated
herein on behalf of Seller or any affiliate of either of them and each party
agrees to indemnify and hold the other harmless from and against any and all
claims suits, damages, costs, expenses, including attorney's fees, asserted
by
agents or other third parties for any commission or compensation based on the
sale of the Equipment, if such claim, suit, damage, costs or expense arises
out
of any action or alleged actions by the other party, its employees, officers
or
agents.
K. Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties hereunder and
supersedes all previous communications, representations or agreements, either
oral or written, heretofore made between the parties regarding the subject
matter hereof. The Agreement shall not be varied in its term by an oral
agreement or representation or otherwise than by an instrument in writing of
even or subsequent date hereto executed by both parties by their duly authorized
representatives.
L. Captions.
The
captions to the articles and subparagraphs contained herein are solely for
the
convenience of the parties and do not in any way affect the meaning of the
terms
thereof.
M. Exhibits.
The
Exhibits and Schedules to the Agreement shall form an integral part
hereof.
N. Counterparts
and Facsimile.
This
Agreement may be executed in any number of separate counterparts by the parties
and may be delivered in original or by facsimile, and each counterpart shall
when executed and delivered be an original document, but all counterparts shall
together constitute one and the same instrument.
O. Confidentiality.
Neither
Party may make any public statement about this Agreement or disclose its terms
and conditions, except its consummation: (a) it has first obtained written
consent from the other Party, which consent will not be unreasonably withheld;
or (b) as
requested or required in connection with a judicial, administrative or
regulatory proceeding in which it or a partner, officer, director, member,
manager, employee or affiliate is involved, pursuant to a court order or
subpoena or regulatory or government inquiry or demand or as otherwise required
by applicable law or regulation, subject to this paragraph. Notwithstanding
anything to the contrary, PLM Investment Funds is required to file SEC Form
8-Ks
in connection with this Agreement and such filing shall not be in violation
of
this confidentiality clause.
[remainder
of page intentionally left blank]
19
IN
WITNESS WHEREOF,
the
parties have executed this
Aircraft and Equipment Sale Agreement on and as
of
the date first written above.
|
APOLLO
AVIATION CAPITAL, L.L.C.
By:
Apollo Aviation Capital Management,
L.L.C.,
as Asset Manager
By:_______________________________
Name:____________________________
Title:______________________________
|
PLM
FINANCIAL SERVICES, INC.,
not
in its individual capacity but solely
as
owner trustee under the N907TW Trust
___________________________________
By:
Xxxxxxx Xxxxx
Title:
Chief Financial Officer
|
|
PLM
FINANCIAL SERVICES, INC.,
not
in its individual capacity but solely
as
owner trustee under the N911TW
and
N912TW Trust
___________________________________
By:
Xxxxxxx Xxxxx
Title:
Chief Financial Officer
| |
20
SCHEDULE
I
Definitions
The
following terms shall have the meanings set forth below:
“Aircraft”
shall
mean, as the context requires, either (a) all of Aircraft 49165, Aircraft 49182
and Aircraft 49183 or (b) any one or more of Aircraft 49165, Aircraft 49182
and
Aircraft 49183.
“Aircraft
49165”
shall
mean, collectively, Airframe 49165 and, subject to Section 4.B hereof, Engine
717900, Engine 709710 and APU 263.
“Aircraft
49182”
shall
mean, collectively, Airframe 49182 and, subject to Section 4.B hereof, Engine
718566, Engine 709760 and APU 192.
“Aircraft
49183”
shall
mean, collectively, Airframe 49183 and, subject to Section 4.B hereof, Engine
708582, Engine 708556 and APU 328.
“Airframe”
shall
mean any of Airframe 49165, Airframe 49182 and Airframe 49183.
“Airframes”
shall
mean, collectively, all of Airframe 49165, Airframe 49182 and Airframe 49183.
“Airframe
49165”
shall
mean the XxXxxxxxx Xxxxxxx model DC-9-82 airframe bearing manufacturer’s serial
number 49165 and FAA registration number N907TW, together with all parts
installed thereon or appurtenant thereto.
“Airframe
49182”
shall
mean the XxXxxxxxx Xxxxxxx model DC-9-82 airframe bearing manufacturer’s serial
number 49182 and FAA registration number N911TW, together with all parts
installed thereon or appurtenant thereto.
“Airframe
49183”
shall
mean the XxXxxxxxx Xxxxxxx model DC-9-82 airframe bearing manufacturer’s serial
number 49183 and FAA registration number N912TW, together with all parts
installed thereon or appurtenant thereto.
“Airframe
49165 Seats”
shall
mean Recaro seats installed in Airframe 49165.
“APU”
shall
mean any of APU 192, APU 263 and APU 328.
“APUs”
shall
mean, collectively, all of APU 192, APU 263 and APU 328.
“APU
192”
shall
mean the Garret Model GTCP-85-98DHF bearing manufacturer’s part number 381276-1
and manufacturer’s serial number P-192, together with all parts installed
thereon or appurtenant thereto.
21
“APU
263”
shall
mean the Garret Model GTCP-85-98DHF bearing manufacturer’s part number 381276-1
and manufacturer’s serial number P-263, together with all parts installed
thereon or appurtenant thereto.
“APU
328”
shall
mean the Garret Model GTCP-85-98DHF bearing manufacturer’s part number 381276-1
and manufacturer’s serial number P-328, together with all parts installed
thereon or appurtenant thereto.
“Closing
Time”
shall
mean, with respect to each Aircraft and the Spares Package, the time on the
applicable Closing Date when title to such Aircraft or the Spares Package passes
from Seller to Buyer.
“Engine”
shall
mean any of Engine 708556, Engine 708582, Engine 709710, Engine 709760, Engine
717900 and Engine 718566.
“Engines”
shall
mean, collectively, all of Engine 708556, Engine 708582, Engine 709710, Engine
709760, Engine 717900 and Engine 718566.
“Engine
708556”
shall
mean the Xxxxx & Xxxxxxx model JT8D-217C engine bearing manufacturer’s
serial number 708556, together with all parts installed thereon or appurtenant
thereto.
“Engine
708582”
shall
mean the Xxxxx & Whitney model JT8D-217A engine bearing manufacturer’s
serial number 708582, together with all parts installed thereon or appurtenant
thereto.
“Engine
709710”
shall
mean the Xxxxx & Xxxxxxx model JT8D-217A engine bearing manufacturer’s
serial number 709710, together with all parts installed thereon or appurtenant
thereto.
“Engine
709760”
shall
mean the Xxxxx & Whitney model JT8D-217A engine bearing manufacturer’s
serial number 709760, together with all parts installed thereon or appurtenant
thereto.
“Engine
717900”
shall
mean the Xxxxx & Xxxxxxx model JT8D-217C engine bearing manufacturer’s
serial number 717900, together with all parts installed thereon or appurtenant
thereto.
“Engine
718566”
shall
mean the Xxxxx & Whitney model JT8D-217C engine bearing manufacturer’s
serial number 718566, together with all parts installed thereon or appurtenant
thereto.
“Equipment”
has
the
meaning set forth in Article 1 hereto.
“FAA”
shall
mean the United States Federal Aviation Administration or any successor
agency.
“Final
Spares Package”
has
the
meaning set forth in Section 2.C hereof.
22
“N907TW
Guarantor”
shall
mean PLM Equipment Growth Fund VI Liquidating Trust, as the beneficiary of
the
N907TW Trust.
“N907TW
Trust”
shall
mean that certain Amended and Restated Trust Agreement dated as of December
24,
1997, as amended, between PLM as owner trustee and PLM Equipment Growth Fund
VI
Liquidating Trust.
“N911TW
and N912TW Guarantor”
shall
mean PLM Equipment Growth & Income Fund VII Liquidating Trust and
Professional Lease Management Income Fund I Liquidating Trust as the
beneficiaries of the N911TW and N912TW Trust.
“N911TW
and N912TW Trust”
shall
mean that certain Amended and Restated Trust Agreement dated as of December
24,
1997, as amended, among PLM as owner trustee and PLM Equipment Growth &
Income Fund VII Liquidating Trust and Professional Lease Management Income
Fund
I Liquidating Trust as owner participants.
“Previous
Operator”
shall
mean, American Airlines, Inc.
“Previous
Operator Engine Stands”
shall
mean one or more engine stands owned or leased by the Previous Operator on
which
one or more of the Engines are stored on the Closing Date for such Engine.
“Seller’s
Agent”
shall
mean, Sigma Asset Management LLC, a limited liability company organized under
the laws of the State of Delaware.
“Spares
Package”
shall
mean the spare parts and loose equipment listed on Schedule II
hereto.
23
SCHEDULE
II
Spares
Package
SPARES
PACKAGE as of: 8/15/2006
|
ITEM
|
PART
NUMBER
|
DESCRIPTION
|
COND TAG
|
SHOP
REPORT
|
STORAGE
|
DATE
OF RELEASE
|
|
1
|
034964
|
FAN
RADIO RACK
|
OH
|
A
|
YES
|
BOXED
|
06-Mar-00
|
|
2
|
123562-2-1
|
AIR
CHECK VALVE
|
SV
|
JAA
|
YES
|
BOXED
|
01-Dec-00
|
|
3
|
156o
|
CHIME
|
SV
|
JAA
|
YES
|
BOXED
|
02-Sep-01
|
|
4
|
162BL708
|
IND
TEMP
|
SV
|
JAA
|
YES
|
BOXED
|
24-Nov-98
|
|
5
|
201EDP1-1
|
SYS
DISPLAY PANEL
|
SV
|
JAA
|
NO
|
BOXED
|
31-Oct-02
|
|
6
|
204950-5-5
|
COOLING
TURBINE
|
SV
|
JAA
|
YES
|
BOXED
|
25-Sep-00
|
|
7
|
2117180-1
|
CABIN
PRESS CNT
|
SV
|
JAA
|
YES
|
BOXED
|
28-Jan-03
|
|
8
|
213779
|
ENG
CONTROL BOX
|
SV
|
JAA
|
YES
|
BOXED
|
21-Dec-02
|
|
9
|
XW21090
|
WIPER
MOTOR
|
SV
|
JAA
|
YES
|
BOXED
|
09-Apr-03
|
|
10
|
2587284-962
|
MACH
TRIM ACT
|
SV
|
JAA
|
YES
|
BOXED
|
04-Dec-91
|
|
11
|
2587335-113
|
VERTICAL
GYRO
|
SV
|
JAA
|
YES
|
BOXED
|
25-Sep-01
|
|
12
|
2587335-113
|
VERTICAL
GYRO
|
SV
|
JAA
|
YES
|
BOXED
|
22-Dec-00
|
|
13
|
2587788-902
|
SERVO
DRIVE
|
SV
|
FAA
|
NO
|
BOXED
|
12-Mar-98
|
|
14
|
2588302-4
|
GYRO
DIR
|
SV
|
JAA
|
NO
|
BOXED
|
22-Sep-98
|
|
15
|
2600-05-1
|
ELECTR
CLOCK
|
SV
|
JAA
|
NO
|
BOXED
|
22-Apr-03
|
|
16
|
2CM9ABH7
|
GENERATOR
TACHO
|
OH
|
JAA
|
YES
|
BOXED
|
29-Dec-00
|
|
17
|
301EDP1-4
|
INDICATOR
|
SV
|
JAA
|
YES
|
BOXED
|
09-Mar-02
|
|
18
|
3601030-13-1
|
SWITCH
CENTRIF
|
SV
|
JAA
|
YES
|
BOXED
|
18-Dec-00
|
|
19
|
3604524-45
|
COMB
ASSY GCP85
|
OH
|
JAA
|
NO
|
BOXED
|
14-Jun-02
|
|
20
|
392796-2-2
|
VALVE
S/O
|
SV
|
JAA
|
YES
|
BOXED
|
17-Dec-02
|
|
21
|
4034234-902
|
FLT
MODE ANNUNC
|
SV
|
JAA
|
YES
|
BOXED
|
14-Apr-03
|
|
22
|
4034239-901
|
ACCELEROMETER
|
SV
|
JAA
|
NO
|
BOXED
|
23-Apr-02
|
|
23
|
4056512-915
|
EFTS
MODE SELEC
|
SV
|
JAA
|
YES
|
BOXED
|
15-May-03
|
|
24
|
42D110
|
PRESS
SWITCH
|
SV
|
JAA
|
NO
|
BOXED
|
22-AUq-00
|
|
25
|
420304
|
PRESSURE
SWITCH
|
SV
|
JAA
|
YES
|
BOXED
|
14-Feb-00
|
|
26
|
43B034LB03
|
NI
CD BATTERY
|
SV
|
JAA
|
YES
|
BOXED
|
19-Nov.02
|
|
27
|
021904-000
|
NI
CD BATTERY
|
SV
|
JAA
|
YES
|
BOXED
|
20-Nov-02
|
|
28
|
5765017-503
|
RUDDER
DAMPER ASSY
|
SV
|
JAA
|
YES
|
BOXED
|
04-Jul-02
|
|
29
|
5914362-503
|
VLV
AY RADIO RK
|
SV
|
JAA
|
NO
|
BOXED
|
21-Jan-03
|
|
30
|
5930645-509
|
ENG.NOSE
BULLET (sin 002245)
|
SV
|
A
|
YES
|
BOXED
|
30-Jun-05
|
|
31
|
60-1177-9
|
PWR
SUP
|
SV
|
JAA
|
NO
|
BOXED
|
27-Feb-02
|
|
32
|
622-3371-002
|
TRX
HF
|
OH
|
FAA
|
YES
|
BOXED
|
28-Jan-98
|
|
33
|
622-4563-011
|
IND
RADIO ALT
|
OH
|
FAA
|
NO
|
BOXED
|
21-May-02
|
|
34
|
2041168-7501
|
ADF
RECEIVER
|
SV
|
JAA
|
YES
|
BOXED
|
02-Dec-02
|
|
35
|
622-7878-201
|
TRANSPONDER
|
SV
|
JAA
|
YES
|
BOXED
|
25-Jul-02
|
|
36
|
63240
|
ACT.THRUST
REV.
|
AR
| | |
BOXED
| |
|
37
|
692993
|
VALVE
S/O
|
SV
|
JAA
|
NO
|
BOXED
|
29-Dec-97
|
|
38
|
745608
|
HEATER
FUEL
|
AR
|
FAA
|
NO
|
BOXED
|
28-May-03
|
|
39
|
773770-1
|
PANEL,FL
DATA
|
SV
|
A
|
YES
|
BOXED
|
06-Jan-03
|
|
40
|
7892551-011.007
|
X.X.X.XXXXXXXX
|
SV
|
JAA
|
NO
|
BOXED
|
15-AUq-01
|
|
41
|
2587794
|
FLUX
VALVE
|
SV
|
FAA
|
NO
|
BOXED
|
08-Dec-99
|
|
42
|
8DJ81LWT4
|
IND
TACH
|
SV
|
JAA
|
YES
|
BOXED
|
02-May-01
|
|
43
|
0XX00XXX0
|
MTR
VOLT AMP
|
SV
|
JAA
|
NO
|
BOXED
|
18-Jul-02
|
|
44
|
8TJ85GCG2
|
TRANSMITTER
F/F
|
SV
|
JAA
|
YES
|
BOXED
|
19
Sept-00
|
|
45
|
980-4100-DXUN
|
UFDR
|
SV
|
JAA
|
YES
|
BOXED
|
28-AUq-01
|
|
46
|
C-4E
|
COMPAS
STAND BY
|
SV
|
A
|
YES
|
BOXED
|
12-May-01
|
|
47
|
D29982-113
|
SLIDE
ASSY.
|
OH
|
JAA
|
YES
|
BOXED
|
13-Mar-02
|
|
48
|
D29982-113
|
SLIDE
ASSY.
|
OH
|
JAA
|
YES
|
BOXED
|
03-Dec-02
|
|
49
|
D29982-113
|
SLIDE
ASSY.
|
OH
|
JAA
|
YES
|
BOXED
|
12-Feb-03
|
|
50
|
G-2933-12
|
VHF
COMM CONT PANEL
|
SV
|
FAA
|
YES
|
BOXED
|
04-Dec-97
|
|
51
|
G-5586
|
XXXX
BOX CNT
|
SV
|
JAA
|
YES
|
BOXED
|
07-Jun-01
|
|
52
|
G-5587
|
ATC
CONTROL
|
SV
|
JAA
|
YES
|
BOXED
|
20-Apr-97
|
|
53
|
G6977-03
|
CNT
AUDIO
|
SV
|
JAA
|
NO
|
BOXED
|
18-Apr-02
|
|
54
|
H05A0035-3
|
AURAL
WARN BOX
|
SV
|
JAA
|
YES
|
BOXED
|
28-Mar-03
|
|
55
|
HG280D5
|
DADC
|
SV
|
JAA
|
YES
|
BOXED
|
27-Jun-00
|
|
56
|
HG280D80
|
DADC
|
OH
|
FAA
|
YES
|
BOXED
|
04-Mar-99
|
|
57
|
R6357-550
|
CONTROLLER
|
SV
|
A
|
YES
|
BOXED
|
21-Dec-01
|
|
58
|
565-5366-7L
|
ANTENNA
L-BAND
|
SV
|
JAA
|
NO
|
BOXED
|
26-Jul-01
|
|
59
|
ST-12BH
|
FLAP
POS TRSM
|
SV
|
JAA
|
NO
|
BOXED
|
05-Dec-02
|
|
60
|
V3900-11
|
VALVE
S/O
|
SV
|
JAA
| |
BOXED
|
01-Dec-97
|
|
61
|
WL101AMS5
|
ALTIM/AIRSP
IND
|
SV
|
JAA
|
YES
|
BOXED
|
29-Oct-99,
|
24
