GLOBAL EXPRESS AIRCRAFT PURCHASE AGREEMENT made on the
24 day of June 1997
BETWEEN: GOLDEN NUGGET AVIATION CORP.
Domicile Address: Mailing address:
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx
XXX 00000
facsimile: (000) 000-0000 facsimile:
telephone: (000) 000-0000 telephone
("Buyer")
AND BOMBARDIER INC., a Canadian corporation represented by
its BUSINESS AIRCRAFT DIVISION with its offices located
at 000 Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxx, Xxxxxx X0X 0X0
facsimile: (000) 000-0000 telephone: (000) 000-0000
("Seller")
ARTICLE 1 SUBJECT MATTER
1.1 Subject to the provisions of this Agreement, Seller
shall sell and deliver to Buyer, and Buyer shall take
delivery of and pay for, one Bombardier Global Express
Aircraft Model BD-700-1A10 (the "Aircraft"), as described in
Bombardier Type Specification No. RAD-700-100, Issue C-1
dated 16 Nov. 1995 which is attached hereto as Schedule "A"
and made part of this Agreement by reference. Schedule "A"
and any amendments and/or revisions thereof made in
accordance with this Agreement are collectively referred to
as the "Specification".
ARTICLE 2 DELIVERY
2.1 The Aircraft shall be ready for delivery to Buyer at
Seller's Plant in the City of Dorval, Province of Quebec,
Canada within 30 days of 30 June 1998.
2.2 Before the end of the period of Article 2.1, Seller
shall give Buyer reasonable notice of the date on which the
Aircraft will be ready for Buyer's inspection and/or flight
test and delivery to Buyer (the "Readiness Date") in
accordance with this Agreement. Buyer shall commence that
inspection and/or flight test within 10 days of the
Readiness Date, such 10 day period being the "Delivery
Period". If no Aircraft defect or discrepancy is revealed by
that inspection and/or flight test, Buyer shall accept
delivery of the Aircraft on or before the last day of the
Delivery Period (the time of the acceptance of delivery of
the Aircraft being the "Delivery Time"). Two
representatives of Buyer may participate in the foregoing
inspection and/or flight test. Such flight test shall not
exceed 4 hours duration.
Exhibit 10.2
2.3 Any Aircraft defect or discrepancy revealed by Buyer's
inspection and/or flight test referred to in Article 2.2
shall be corrected by Seller before the delivery of the
Aircraft to Buyer which, in the case of this Article 2.3,
may occur during or after the Delivery Period depending on
the nature of the defect or discrepancy and time required
for correction. Such correction shall be made at no cost to
Buyer. If such correction requires an additional flight test
it will be conducted according to Article 2.2. When this
Article 2.3 applies, Buyer shall accept delivery of the
Aircraft within 3 days after the Aircraft defect or
discrepancy has been corrected.
2.4 If Buyer does not accept delivery of the Aircraft
according to Article 2.2 or 2.3, as applicable, Buyer shall
be deemed to be in default of the terms of this Agreement
and (i) the unpaid balance of the Purchase Price (as defined
in Article 3.1) shall immediately become due and payable,
(ii) the Aircraft shall thereafter be provided with suitable
outside storage at the expense of Buyer, and (iii) all risk
of loss or damage to the Aircraft shall pass to and be borne
by Buyer. Should Buyer not accept delivery of the Aircraft
within 30 days after the date for delivery as established
according to Article 2.2 or 2.3, as applicable, Seller, at
its election and upon giving 10 days written notice to
Buyer, may terminate this Agreement in accordance with
Article 14.
2.5 Buyer, by its acceptance of the Aircraft at Delivery
Time and signature of a receipt for the Aircraft in the form
of Schedule "B" attached hereto, shall be deemed to have
examined the Aircraft and found it in conformity with the
Specification and with the provisions of this Agreement.
2.6 If, at Delivery Time, the Aircraft is temporarily
equipped with any ferry equipment loaned by Seller to Buyer,
Buyer accepts all risk and responsibility for such ferry
equipment and Buyer agrees to return to Seller, at Seller's
expense, all such ferry equipment within 30 days after the
Aircraft leaves Seller's plant.
ARTICLE 3 MANUFACTURING PAYMENT SCHEDULE
3.1 Refer Addendum
3.2 Any reference in this Agreement to the payment of
interest will be at the U.S. prime interest rate as quoted
in The Wall Street Journal, Money Rates column, on the first
business day of the month for that month (and to the extent
applicable, on the first business day of each succeeding
month for such succeeding month), and such interest shall be
compounded annually.
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3.3 Seller shall remain exclusive owner of the Aircraft,
free and clear of all rights, prior claims, liens, charges
or encumbrances, until such time as all payments referred to
in Article 3.1 have been made.
3.4 Any overdue amounts payable hereunder will bear
interest as specified in Article 3.2.
3.5 All payments under this Article 3 shall be made in U.S.
dollars by wire transfer or by other method acceptable to
Seller at the address shown above. Any payment made by way
of wire transfer must be received in immediately available
funds deposited to Seller's account indicated above before
Seller can consider the payment to have been made.
ARTICLE 4 CERTIFICATION
4.1 Seller represents it will obtain a Department of
Transport (DOT) of Canada Type Approval, validated by a Type
Certificate issued in accordance with Part 25 of the Federal
Aviation Regulations of the Federal Aviation Administration
(FAA) of the United States for the Bombardier Global Express
BD-700-1A10 type aircraft. Seller shall provide Buyer a DOT
Certificate of Airworthiness for Export. That Certificate of
Airworthiness for Export will permit the Aircraft to qualify
for an FAA Certificate of Airworthiness. Seller shall not be
obligated to obtain any other certificates or approvals as
part of this Agreement.
4.2 Regulatory Changes - If any change to the Aircraft is
required because of any law or governmental regulation or
requirement or interpretation thereof by any governmental
agency ("Regulatory Change") which is effective after the
date of this Agreement, but before Delivery Time, which is
applicable to all aircraft in general or to all aircraft of
the same category as the Aircraft, such Regulatory Change
shall be made to the Aircraft before Delivery Time and Buyer
shall pay Seller's reasonable cost for such Regulatory
Change. If the incorporation of such Regulatory Change
delays the delivery of the Aircraft, that delay shall be an
Excusable Delay according to Article 13.
ARTICLE 5 LOSS OR DESTRUCTION OF AIRCRAFT
5.1 In the event of the loss, destruction or damage beyond
repair of the Aircraft prior to Delivery Time, Buyer shall
have the right to accept delivery of the next available
aircraft, as reasonably determined by Seller, at the
prevailing price for aircraft of that configuration or
specification, or to terminate this Agreement. In the case
of termination, Buyer's rights shall be governed by Article
14.4. Buyer shall notify Seller of its decision within 15
days from receipt by Buyer of written notice from Seller of
the loss, destruction or damage of the Aircraft and the
delivery date and price of the next available aircraft.
3
ARTICLE 6 CHANGES
6.1 Seller may, prior to Delivery Time and without Buyer's
consent:
i) substitute the kind, type or source of any
material, part, accessory or equipment by any
other material, part, accessory or equipment of
like, equivalent or better kind or type; or
ii) make such change or modification to the Aircraft
or Specification as it deems appropriate to
improve the Aircraft, its maintainability or
appearance or to prevent delays in manufacture or
delivery;
provided that such substitution, change or modification
shall not adversely affect the Purchase Price or
performance. If delivery of the Aircraft is delayed in
accordance with this Article, such delay shall be an
Excusable Delay according to Article 13.
ARTICLE 7 SPARE PARTS
7.1 The term "Spare Parts" shall mean only such parts for
the Aircraft as are manufactured by Seller or to Seller's
detailed design and specification or over which Seller
exercises proprietary control. To provide a ready,
dependable source for Spare Parts, Seller, from Delivery
Time to a period of 10 years after delivery of the last BD-
700-1A10 aircraft manufactured by Seller shall:
i) maintain, or use its best efforts to cause its
vendors and subcontractors to maintain, a stock of
Spare Parts in reasonable quantities to meet
Buyer's normal operating requirements; and
ii) maintain, or cause to be maintained, tooling for
production of Spare Parts manufactured by Seller
and not so normally maintained in stock.
All sales of such Spare Parts are to be at Seller's
prevailing prices at the time of receipt of each order and
at the then current terms and conditions.
ARTICLE 8 TITLE AND RISK
8.1 At Delivery Time, Seller shall deliver to Buyer a xxxx
of sale and title to the Aircraft shall pass to Buyer free
and clear of all rights, liens, charges, prior claims and
encumbrances.
4
At Delivery Time, risk of damage to or loss of the Aircraft
shall pass to Buyer. If, after Delivery Time, the Aircraft
remains in or is returned to the care, custody or control of
Seller or any of Seller's subsidiaries, affiliates or its
parent (collectively "Seller") for any purpose, Buyer shall
retain risk of damage to or loss of the Aircraft and, for
itself and on behalf of its insurer(s), hereby waives, and
releases Seller from, any claim whether direct, indirect or
by way of subrogation for damage to or loss of the Aircraft
arising out of such care, custody or control.
ARTICLE 9 TRAINING
9.1 Included in the sale of the Aircraft and incidental
thereto, Seller shall make available a ground and flight
training program for 4 qualified pilots, a ground
maintenance training program for 2 mechanics and training
for 2 cabin flight attendants at no additional cost to
Buyer. Buyer shall be responsible for all travel and living
expenses of Buyer's personnel. Seller strongly recommends
that all training be completed before placing the Aircraft
into service but, in any event, all training shall be
completed no later than 1 year from Delivery Time or Buyer's
rights to training at no additional cost under this Article
shall expire.
ARTICLE 10 WARRANTY
10.1 Seller warrants that at Delivery Time the Aircraft
shall conform to the Specification as defined herein and
shall be free from: i) defects in material, (ii) defects
in manufacture, and (iii) defects in design, having regard
to the state-of-the-art as of the time of design of the
Aircraft ("Warranty"). Any matters stated in this Agreement
or in the Specification as type characteristics, estimates,
approximations, objectives, design objectives or design
criteria are excluded from the Warranty.
10.2 As to each matter covered by the Warranty, Seller's
sole obligation and liability under the Warranty is (a)
expressly limited to correction, by repair, replacement or
rework of the item(s) by Seller at Seller's facilities, or
at such other facility as may be designated by Seller, of
any defect specified in clauses (i), (ii), or (iii) of
Article 10.1 and (b) is subject to Buyer delivering to
Seller a written description of the defect as soon as
practicable, but no later than 3 months after the defect
becomes apparent to Buyer. Any item(s) (excluding the
Aircraft) found defective shall be returned to Seller at
Seller's expense.
5
10.3 The Warranty in respect to the Aircraft shall be for
5000 flight hours or for 5 years from the date Buyer accepts
delivery of the Aircraft from the completion center ("In-
Service Date"), whichever first occurs, but in no event
shall the Warranty exceed 68 months from Delivery Time.
10.4 Notwithstanding Article 10.3 above, the Warranty period
applicable to airframe metal structures covered in Sections
53 (Fuselage), 55 (Stabilizers) and 57 (Wings) of the
Specification shall be for 20,000 flight hours or for 20
years from Delivery Time, whichever first occurs; provided,
however, that such extended Warranty period as stated in
this Article 10.4 does not apply to doors, fairings, covers,
non-metallic structures and systems/equipment support
structure, for which specific items the Warranty period
shall be as stated in Article 10.3.
10.5 Seller shall be relieved of its obligations and
liability with respect to any claim under the Warranty if
such claim results from any of the following:
i) the Aircraft is not operated or maintained in
compliance with the governing or applicable
provisions of Seller's FAA or DOT, as applicable,
Approved Flight Manual, Maintenance Manual and
Service Bulletins, and as each thereof may be
amended from time to time by Seller;
ii) installation, repair, alteration or modification
to or of the Aircraft made by Buyer or third party
which is determined to be the cause or a
contributing cause of the defect;
iii) the Aircraft is subjected to misuse, abuse or
accident or is not properly stored and protected
against the elements when not in use;
iv) Buyer does not submit that the defect is covered
by the Warranty.
10.6 Notwithstanding any other provisions of this Article
10, the Warranty shall not apply to any Powerplants
("Powerplant" shall mean a complete propulsion system
consisting of the Engine, Nacelle, Controls and Accessories)
installed in the Aircraft. The Powerplant warranty shall be
provided directly by the Powerplant manufacturer (BMW Rolls-
Royce) to Buyer, shall be the sole responsibility of the
Powerplant manufacturer, and the rights of Buyer with
respect to the Powerplants shall be a matter as between
Buyer and the Powerplant manufacturer. Buyer agrees that
Seller shall have no liability or responsibility for any
Powerplant warranty including, without limitation, any lack
of performance, reliability or maintainability of the
Aircraft as a result of the Powerplants.
6
10.7 Seller does not warrant, and is hereby relieved of any
obligation to warrant, any accessory, equipment or part
incorporated in the Aircraft which is not furnished
pursuant to this Agreement, or any amendment to this
Agreement, including, without limitation, any accessory,
equipment or part installed by anyone other than Seller.
10.8 Any repair, replacement or rework by Seller under the
Warranty shall also be covered by the Warranty covering
material and workmanship for the unexpired portion of the
Warranty periods set forth in this Article 10 remaining at
the time of repair, replacement or rework.
10.9 The Warranty shall run to Buyer, its successors and to
all persons to whom title to the Aircraft may be transferred
during the Warranty periods set forth in this Article 10,
provided that any such successor or owner shall remain
subject to the applicable provisions of this Agreement to
the same extent as Buyer.
10.10 Buyer shall not be entitled to the benefits of the
Warranty if Buyer does not maintain complete records of
operations and maintenance of the Aircraft and make such
records available to Seller. Buyer's failure to maintain
such records shall relieve Seller of its Warranty
obligations. Buyer shall notify any subsequent buyer, owner,
assignee, operator or transferee of the Aircraft of their
obligation to maintain such records and to make them
available for Seller's inspection. Whether notified or not,
if such person does not comply with the foregoing, that
person shall not be entitled to the benefits of the
Warranty.
10.11 THE WARRANTY, OBLIGATIONS AND LIABILITIES OF
SELLER AND THE RIGHTS AND REMEDIES OF BUYER SET FORTH IN
THIS ARTICLE 10 ARE EXCLUSIVE AND ARE IN LIEU OF AND BUYER
HEREBY WAIVES AND RELEASES ALL OTHER WARRANTIES,
OBLIGATIONS, REPRESENTATIONS OR LIABILITIES, EXPRESS OR
IMPLIED, ARISING BY LAW, IN CONTRACT, CIVIL LIABILITY OR IN
TORT, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS OR OF ANY IMPLIED
CONDITION, AND ANY OTHER OBLIGATION OR LIABILITY ON THE
PART OF SELLER TO ANYONE OF ANY NATURE WHATSOEVER BY REASON
OF THE DESIGN, MANUFACTURE, SALE, REPAIR, LEASE OR USE OF
THE AIRCRAFT OR RELATED PRODUCTS AND SERVICES DELIVERED OR
RENDERED HEREUNDER.
10.12 In the event that any of the provisions of this
Article 10 are for any reason declared unenforceable or
ineffective, the remainder of the Article shall remain in
full force and effect.
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ARTICLE 11 TECHNICAL DATA AND SERVICES
11.1 At Delivery Time, Seller shall deliver to Buyer
documentation and the technical publications described in
Schedule "D" attached hereto and made a part of this
Agreement by reference.
11.2 Commencing with Delivery Time, Seller will make
available to Buyer, at its last address made known by Buyer
to Seller, from time to time, service bulletins and general
information applicable to the Aircraft, as well as any
amendments to the documentation and technical publications
referred to in Article 11.1 applicable to Buyer's Aircraft,
for a period of 10 years after delivery of the last BD-700-
1A10 aircraft manufactured by Seller. Seller shall provide
this service at no additional cost to Buyer for a period of
5 years from Delivery Time.
11.3 It is understood that the documentation and
publications provided under this Article 11 and any other
data, drawings or information mentioned in the Specification
are proprietary to Seller and that all rights to copyright
belong to Seller and shall be kept confidential by Buyer.
Buyer agrees to use any data, drawings or other information
solely to maintain, operate or repair the Aircraft or to
make any installation or alteration thereto allowed by
Seller.
ARTICLE 12 TAXES AND DUTIES
12.1 The Purchase Price does not include any sales, use,
personal property, excise, consumption, goods and services,
value added, luxury or other similar taxes, duties, or
assessments ("Taxes") which may be levied, assessed or
imposed by any governmental authority or agency on or as a
result of this sales transaction, to the extent imposed by
law on Buyer or Seller, the Aircraft itself, other matters
or things covered hereunder (including services,
instructions or Seller-furnished data) or on the use,
delivery, storage or transfer of any of them. Seller shall
notify Buyer of any such Taxes, including interest and
penalties, that the governmental authority or agency is
seeking to collect from Seller, and Buyer agrees to
promptly, but in no event later than 10 days after receiving
such notices, pay same directly to said governmental
authority or agency, or to reimburse Seller for said Taxes,
including interest and penalties, or to assume the defense
against imposition thereof at its sole cost and expense and
to hold Seller harmless from any such imposition. If Buyer
does not make timely payment directly to said governmental
authority or agency or timely defense, Seller may pay the
asserted Taxes, including interest and penalties, and Buyer
shall thereupon reimburse Seller for any such payment and
all reasonable costs and expenses of Seller. Provided that
8
Buyer is purchasing the Aircraft for immediate export from
Canada, Seller represents that according to current Canadian
law, there are no Canadian taxes payable with respect to the
Aircraft which Buyer would become obligated to pay
pursuant to this Article 12.
12.2 Upon Seller's request, Buyer shall execute and deliver
to Seller any documents that Seller deems necessary or
desirable in connection with any exemption or reduction of,
or the defense against, any imposition of the Taxes referred
to in Article 12.1 hereof.
ARTICLE 13 EXCUSABLE DELAY
13.1 In the event of delay on the part of Seller in the
performance of its obligations or responsibilities under the
provisions of this Agreement, due directly or indirectly to
force majeure, acts of God or any enemy, war, civil
commotion, insurrection, riot, embargo, fire, explosion,
earthquake, lightning, flood, drought, windstorm or other
action of the elements, or other catastrophe or accident,
epidemic or quarantine restrictions, or any legislation,
act, order, directive, or regulation of any government or
governmental body, delay or failure of carriers, strike,
lock-out, walk-out , slow-down, or other labor trouble, lack
or shortage or delay in delivery of supplies, materials,
accessories, equipment, tools or parts, delay or failure of
subcontractors or suppliers for any reason whatsoever
including mechanical breakdown, delay in obtaining any type
approval or any Airworthiness Certificates by reason of any
law or governmental order, directive or regulation or
interpretation thereof by a governmental agency, the
effective date of which is subsequent to the date of this
Agreement, requiring any modification in the Aircraft in
order to obtain the type approval, or any other cause
whatsoever, whether similar to those herein before mentioned
or of a different nature, beyond Seller's control or without
negligence of Seller, Seller shall not be responsible for
any such delay and the time fixed or required for the
performance of any obligation or responsibility in this
Agreement shall be extended for a period equal to the period
during which any such cause and the effects thereof persist.
13.2 In the event that the delivery of the Aircraft is
delayed by reason of any one or more of the causes to which
reference is made in this Article 13 for more than 12 months
beyond the last day of the month when delivery is otherwise
required, either Buyer or Seller may terminate this
Agreement upon notice in writing to the other party of such
termination, which notice shall be given within 15 days
immediately following such period of 12 months. In the event
of such termination, Seller's sole liability and
responsibility shall be limited to the obligation to return
to Buyer all amounts previously paid to Seller.
9
Refer Addendum
ARTICLE 14 RESPECTIVE RIGHTS, RECOURSES AND OBLIGATIONS
14.1 If Buyer fails to make any of the payments provided for
in Article 3.1 on or before the stipulated date, Seller
shall have no further obligations to Buyer under this
Agreement, including no obligation to proceed further with
the manufacture of the Aircraft on behalf of the Buyer or
the sale and delivery of the Aircraft to Buyer. In such a
case, i) Buyer acknowledges that all rights (including
property rights and the right to sell the Aircraft to
another party) in and to the Aircraft remain vested with
Seller free and clear of any ownership or title rights,
liens, charges or encumbrances; and ii) Buyer shall have no
right to recover from Seller any of the amounts previously
paid to Seller. All such amounts shall be applied against
the costs and damages incurred by Seller as a result of
Buyer's default. Buyer hereby acknowledges and recognizes
that in any event, such costs and damages will aggregate not
less than the amounts previously paid to Seller. Seller
shall have the option of waiving such failure on the part of
Buyer, should Buyer, within 15 days of such default, make
arrangements satisfactory to Seller for such payment and all
future payments.
Refer Addendum
14.2 a) This Agreement may be terminated before Delivery
Time by either party by notice of termination to the other
party upon the occurrence of any of the following events:
i) the other party makes an assignment for the
benefit of creditors, or admits in writing its
inability to pay its debts;
ii) a receiver or trustee is appointed for the other
party or for substantially all of such party's
assets and, if appointed without such party's
consent, such appointment is not discharged or
stayed within 30 days;
iii) proceedings under any law relating to bankruptcy,
insolvency or the reorganization or relief of
debtors are instituted by or against the other
party and, if contested by such party, are not
dismissed or stayed within 30 days; or
iv) any writ of attachment or execution or any similar
process is issued or levied against the other
party or any significant part of its property and
is not released, stayed, bonded or vacated within
30 days after its issue or levy.
10
b) In addition, Seller may terminate this Agreement
before Delivery Time (i) as provided in Article 2.4 hereof;
or (ii) if Buyer is in default or breach of any material
term or condition of this Agreement and does not cure such
default or breach promptly after receipt of notice from
Seller specifying such default or breach.
c) In addition, Buyer may terminate this Agreement
before Delivery Time if Seller is in default or breach of
any material term or condition of this Agreement.
14.3 In case of termination of this Agreement by Seller
pursuant to and in accordance with Article 14.2:
i) all rights (including property rights) which Buyer
may have or may have had in or to this Agreement
or the Aircraft shall be extinguished;
ii) all rights (including property rights and the
right to sell the Aircraft to another party) in
and to the Aircraft shall be vested with Seller
free and clear of any ownership or title rights,
prior claims, liens, charges or encumbrances; and
iii) all amounts previously paid to Seller shall be
retained by Seller and shall be applied against
the costs and damages incurred by Seller as a
result of the termination of this Agreement. Buyer
hereby acknowledges and recognizes that in any
event, such costs and damages will aggregate not
less than the amounts previously paid to Seller.
Refer Addendum
14.4 Upon termination of this Agreement by Buyer pursuant to
and in accordance with Article 14.2 or Article 5, Buyer's
sole right, remedy and recourse against Seller and Seller's
obligation to Buyer shall be limited to the following: Buyer
shall be entitled to recover from Seller only those amounts
previously paid to Seller.
ARTICLE 15 INDEMNITY AGAINST PATENT INFRINGEMENT
15.1 Subject to the provisions hereinafter set out in this
Article 15, Seller agrees to indemnify, protect, and save
harmless Buyer against any liability, losses, damages or
expenses (excluding any liability, losses, damages and
expenses in respect of or resulting from any lack or loss of
use of the Aircraft) resulting solely from any actual or
alleged infringement of a Canadian or United States patent
by the Aircraft. The foregoing shall not apply to the
Powerplants or any accessory, equipment or part which was
not manufactured by Seller or is not manufactured
exclusively pursuant to Seller's detailed design, or which
was incorporated in the Aircraft at Buyer's request instead
of or in addition to any accessory, equipment or part
furnished by Seller.
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15.2 Seller shall not be liable with respect to any actual
or alleged patent infringement to which this Article 15
would apply unless:
i) Suit is commenced against Buyer for infringement
or Buyer receives a written claim alleging
infringement and notice is given in writing to
Seller by Buyer within 20 working days after the
receipt by Buyer of the suit or written claim;
ii) Buyer uses diligent efforts, in full cooperation
with Seller, to reduce or mitigate any such
expenses, damages, costs and royalties involved;
iii) Buyer furnishes promptly to Seller all data,
papers and records within its possession and any
other information or material within Buyer's
knowledge or control necessary or useful to resist
and defend against such claim or suit; and
iv) Buyer refrains from making any payment and from
assuming any obligations, liabilities, expenses,
damages, costs and royalties for which Seller may
be held liable, without approval of Seller, and is
diligent to reduce or mitigate any such expenses,
damages, costs and royalties.
15.3 Seller shall have the option at any time or from time
to time to conduct negotiations, in its own name, or in the
name of Buyer, and to enter into a settlement or settlements
with the party or parties involved in the actual or alleged
patent infringement and to intervene in any suit or claim.
Should Seller intervene in any such suit or claim, it shall
be entitled at any stage of negotiations or proceedings to
assume, conduct or control the defense thereof. If Seller
assumes such defense and Buyer, in its interest, elects to
participate therein, it shall do so at its sole cost and
expense.
15.4 THE OBLIGATIONS ON THE PART OF SELLER IN THIS ARTICLE
15 ARE UNDERTAKEN BY SELLER AND ACCEPTED BY BUYER IN LIEU OF
ANY AND ALL OTHER OBLIGATIONS EXPRESS OR IMPLIED, ARISING IN
LAW OR OTHERWISE, TO WHICH SELLER MIGHT OTHERWISE BE LIABLE
IN RESPECT OF ANY ACTUAL OR ALLEGED PATENT INFRINGEMENT BY
THE AIRCRAFT OR UNDER ANY PATENT RIGHT OR RIGHT TO PATENT,
AND SUCH OBLIGATIONS SHALL NOT BE EXTENDED, ALTERED OR
VARIED EXCEPT IN WRITING SIGNED BY SELLER AND BUYER UNDER
THE HANDS OF THEIR RESPECTIVE DULY AUTHORIZED
REPRESENTATIVES.
ARTICLE 16 LIMITATION OF LIABILITY
16.1 SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, SPECIAL, INCIDENTAL AND/OR PUNITIVE DAMAGES
OF ANY KIND OR NATURE UNDER ANY CIRCUMSTANCES, OR FOR ANY
LOSSES OR DAMAGES FOR OR ARISING OUT OF ANY LACK OR LOSS OF
USE OF ANY AIRCRAFT, ANY EQUIPMENT OR ANY SPARE PARTS FOR
ANY REASON.
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ARTICLE 17 MISCELLANEOUS
17.1 Assignment - Neither this Agreement nor any of the
rights of Buyer hereunder shall be assignable by Buyer in
whole or in part without Seller's written consent which
shall not be unreasonably withheld. Notwithstanding the
foregoing, this Agreement shall be assignable by Buyer in
whole or in part to a wholly-owned subsidiary or affiliate
of Buyer or any financial institution which is providing
financing to Buyer in connection with Buyer's acquisition of
the Aircraft provided that Buyer shall remain solidarily
liable with the assignee for the fulfillment of all the
terms and conditions of this Agreement. Buyer hereby
acknowledges receipt of due notice (i) that a portion of the
interest of the Seller in this Agreement and the Purchase
Price payable hereunder could be assigned in favour of LR
Jet Corporation under a certain Receivables Purchase
Agreement dated as of March 27, 1995 and (ii) of the
hypothecation and creation of a security interest in favour
of State Street Bank and Trust Company under the terms of a
Trust Indenture and Security Agreement dated as of March 27,
1995. For greater certainty, Buyer hereby acquiesces to the
hypothec and the assignment created under the said Trust
Indenture. Notwithstanding any of the above-mentioned
assignment, security interest or hypothec, Seller shall
remain the sole party responsible to Buyer for all of
Seller's obligations as Seller hereunder.
17.2 Notices - All communications between the parties
hereto, including any notice to be given hereunder, shall be
in writing and shall be deemed sufficiently given if sent by
registered or certified mail, commercial courier or
facsimile to the party to which said notice is to be given
at its address as shown on page 1 hereof unless such address
is changed by a notice given to the other party. Notices so
sent shall be deemed to be received upon actual receipt by
the receiving party.
17.3 Successors - This Agreement shall inure to the benefit
of and be binding upon each of Seller and Buyer and their
respective successors.
17.4 Compensation - Buyer shall not be entitled to any
abatement, reduction, set-off, compensation, withholding or
counterclaim against any of the payments due under this
Agreement by reason of any past, present or future right or
claim against Seller under this Agreement or any other
obligation, whether or not contractual and whether or not
related to this Agreement.
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17.5 Laws - THE RELATIONSHIP BETWEEN THE PARTIES, INCLUDING
THEIR RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT, SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE PROVINCE OF QUEBEC, CANADA. Seller and Buyer,
which have acceded to this Agreement, have required and
agreed that it and any related documents including those
required under Article 11 be drawn up in the English
language only; le Vendeur et l'Acheteur, parties aux
presentes, ont expressement requis et conviennent que ce
contrat en tout document connexe incluant ceux requis par
l'Article 11 soient rediges dans la langue anglaise
seulement.
17.6 Agreement
17.6.1 This Agreement and the matters referred to herein
constitute the entire Agreement between Seller and Buyer and
supersede and cancel all prior representations, alleged
warranties, statements, negotiations, undertakings, letters,
acceptances, agreements, understandings, contracts and
communications, whether verbal or written, between Seller
and Buyer or their respective agents, with respect to or in
connection with the subject matter of this Agreement and no
agreement or understanding varying the terms and conditions
hereof shall be binding on either Seller or Buyer unless in
writing and duly signed by their respective authorized
representatives. In the event of any inconsistencies between
this Agreement, any addendum clauses and any of the annexes,
Specification or other documents referred to herein, the
provisions of first the addendum clauses and then this
Agreement shall prevail, followed by the Specification.
17.6.2 If any of the provisions of this Agreement are for
any reason declared by judgement of a court of competent
jurisdiction to be unenforceable or ineffective, those
provisions shall be deemed severable from the other
provisions of this Agreement and the remainder of this
Agreement shall remain in full force and effect.
17.6.3 This Agreement shall only be considered as
executed by Seller when signed in duplicate originals on its
behalf at its registered office.
17.6.4 The obligations and liabilities of Seller,
including the Warranty contained in Article 10 and the
Limitation of Liability contained in Article 16 of this
Agreement, have been expressed, discussed, understood and
agreed to between Buyer and Seller in consideration of the
Purchase Price of the Aircraft and other provisions of this
Agreement.
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ARTICLE 18 CONFIDENTIALITY
18.1 Seller and Buyer hereby agree to keep this Agreement
and its contents confidential and each party hereto agrees
that it shall not disclose, or permit to be disclosed, the
same to any person or entity, except:
i) to assignees or transferees of a party or to their
counsel, accountants, auditors, other agents or
third parties, on a "need to know" basis, all of
whom shall agree to keep the same confidential;
ii) to a party's counsel, accountant, auditor or other
agents who agree to keep such information
confidential;
iii) as may be required by statute, court or
administrative order or decree or governmental
ruling or regulation of the United States or
Canada or other applicable jurisdiction, or
iv) to the extent that such information is published
as publicly available.
Neither any party to this Agreement nor any of its agents
shall make any press release or other similar public
announcement disclosing the terms of this transaction or
this document or the identity of any party to this Agreement
without the prior written consent of the other party.
ARTICLE 19 REFER ADDENDUM
BUYER: SELLER:
GOLDEN NUGGET AVIATION CORP. BOMBARDIER INC., BUSINESS
AIRCRAFT DIVISION
Per: Xxxxx X. Xxxxx Per: Xxxxx X. Xxxxxx
Title: Assistant Secretary Title: Executive Vice President
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ADDENDUM TO GLOBAL EXPRESS AIRCRAFT PURCHASE
AGREEMENT BETWEEN GOLDEN NUGGET AVIATION CORP.
AND BOMBARDIER INC. DATED 24 JUNE 1997
ARTICLE 3 MANUFACTURING PAYMENT SCHEDULE
3.1 Delete this Article in its entirety and
replace with the following:
"In consideration of Seller's obligation to
proceed with the manufacture, delivery and sale
of the Aircraft, Buyer undertakes to make the
following payments to Seller for a total amount
of $29,500,000 U.S. dollars (the "Purchase
Price") which is subject to an escalation
adjustment in accordance with Schedule "C"
attached hereto.
i) A first payment of US $7,375,000 being an
amount equal to 25 percent of the Purchase
Price, shall be paid at the time of
contract execution of this Agreement.
ii) The balance of the Purchase Price,
$22,125,000 plus any adjustment required in
accordance with Schedule "C" shall be paid
at Delivery Time.
Each of such payments, except the last,
shall be on account of the manufacture, delivery
and sale of the Aircraft."
ARTICLE 9 TRAINING
9.1 On the second line replace "4" with "6".
ARTICLE 13 EXCUSABLE DELAY
13.2 On the third line replace "12" with "6".
On the seventh line replace "12" with "6".
ARTICLE 14 RESPECTIVE RIGHTS, RECOURSES AND OBLIGATIONS
14.1 Replace clause ii) of the second sentence,
and the third sentence, with the following:
"ii) Seller shall be entitled to retain
U.S. $7,375,000 of the amount paid to Seller on
account of the Purchase Price as Seller's sole
and exclusive remedy for any costs and damages
incurred by Seller as a result of the
termination of this Agreement; such amount does
not constitute an abusive penalty but includes,
without limitation, loss of profit on the sale
contemplated by this Agreement, direct and
indirect costs incurred as a result of
disruption in production, and selling expenses
to resell the Aircraft. The parties have agreed
upon the foregoing amount of liquidated damages
as a reasonable forecast of the anticipated or
actual loss Seller will suffer as a result of
the termination of this Agreement. Seller shall
promptly return to Buyer any amount in excess of
U.S. $7,375,000 paid to Seller on account of the
Purchase Price.".
14.3 iii) Replace this sub-Article with the
following:
"Seller shall be entitled to retain U.S.
$7,375,000 of the amount paid to Seller on
account of the Purchase Price as Seller's sole
and exclusive remedy for any costs and damages
incurred by Seller as a result of the
termination of this Agreement; such amount does
not constitute an abusive penalty but includes,
without limitation, loss of profit on the sale
contemplated by this Agreement, direct and
indirect costs incurred as a result of
disruption in production, and selling expenses
to resell the Aircraft. The parties have agreed
upon the foregoing amount of liquidated damages
as a reasonable forecast of the anticipated or
actual loss Seller will suffer as a result of
the termination of this Agreement. Seller shall
promptly return to Buyer any amount in excess of
U.S. $7,375,000 paid to Seller on account of the
Purchase Price.".
ARTICLE 19 PERFORMANCE GUARANTEES
19.1 Notwithstanding the provisions of the
Specification (but subject to the performance
conditions contained in Specification Section 04-
32-00 except as herein modified), the Aircraft
performance guarantees shall be as per
Attachment "A" attached hereto based on Maximum
Ramp Weight of 93,750 lb., Maximum Take-Off
Weight of 93,500 lb., Operating Weight Empty of
48,800 lb., and Maximum Fuel of 43,350 lb. In
addition, the performance guarantees shall
include the following:
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1. At Mach .85, minimum range guarantee of 6400
n. mi. with NBAA IFR reserve fuel, ISA, zero
wind, eight (8) passengers and crew of four
(4).
2. At Mach .80, minimum range guarantee of 6700
n. mi. with reserve fuel of 2,000 lb., ISA,
zero wind, eight (8) passengers and crew of
four (4).
3. Cruise altitude shall be guaranteed at a
minimum of 45,000 ft.
19.2 Should the Aircraft i) fail to meet the
above mentioned performance guarantees at
Delivery Time, or ii) not be delivered within 30
days of 30 June 1998 for reasons other than
Excusable Delay, then Buyer shall have the right
to terminate this Agreement. In the event of
such termination, Seller's sole liability and
responsibility shall be limited to the
obligation to return to Buyer all amounts
previously paid to Seller plus interest.
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