Exhibit 99.1
AIRCRAFT SALE & PURCHASE AGREEMENT
Dated as of November 14, 2005
JETGLOBAL, LLC
as Seller
and
AVIATION FINANCE GROUP, LLC
as Purchaser
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relating to twelve (12) Boeing 737-200 Aircraft
manufacturer's serial number - As specified herein
engines manufacturer's serial numbers - As specified herein
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CONTENTS
Clause Page
1. Interpretation.......................................................3
2. Representations And Warranties.......................................3
3. Agreement To Sell And Purchase.......................................3
4. Conditions Precedent.................................................9
5. Purchase Price......................................................10
6. Acceptance..........................................................12
7. Delivery............................................................12
8. Aircraft Condition & Warranties.....................................13
9. Registration Fees...................................................14
10. Indemnification.....................................................14
11. Substitute Aircraft.................................................16
12. Insurance ..........................................................16
13. Further Provisions..................................................17
14. Governing Law ......................................................19
15. Brokers And Other Third Parties.....................................19
16. Confidentiality.....................................................19
17. Cooperation ........................................................19
18. Assignment Of Warranties............................................20
SCHEDULE 1 DESCRIPTION OF AIRCRAFT................................1
SCHEDULE 2 DEFINITIONS............................................1
SCHEDULE 3 CONDITIONS PRECEDENT...................................1
Part A Seller Conditions Precedent............................1
Part B Purchaser Conditions Precedent.........................2
SCHEDULE 4 REPRESENTATIONS AND WARRANTIES.........................1
Part A Seller's Representations And Warranties................1
Part B Purchaser's Representations And Warranties.............2
SCHEDULE 5 AIRCRAFT BILL OF SALE..................................1
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SCHEDULE 6 FORM OF ACCEPTANCE CERTIFICATE.........................1
SCHEDULE 7 AIRCRAFT SPECIFICATION SUMMARY.........................1
SCHEDULE 8 STANDARD DOCUMENT LIST.................................1
SCHEDULE 9 INSURANCE REQUIREMENTS.................................1
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THIS AGREEMENT is made as of November 14, 2005
AMONG:
JETGLOBAL, LLC, a company organized in the State of Delaware, United States of
America, with its address at c/o BCI Aircraft Leasing, Inc., 330 North Wabash
Avenue, Suite 2802, Chicago, Illinois 60611 ("Seller"); and
AVIATION FINANCE GROUP, LLC, a company organized in the State of Delaware,
United States of America, with its address at 18604 Phantom Street, Victorville,
California 92394 ("Purchaser").
IT IS AGREED as follows.
1. INTERPRETATION
1.1 Definitions: Capitalized words and expressions are defined in Schedule 2.
1.2 Construction: Headings are to be ignored in construing this Agreement and
unless the contrary intention is stated, a reference to:
(a) each of "Seller", "Purchaser" or any other Person includes any
permitted successors and assignees;
(b) words importing the plural shall include the singular and vice versa;
(c) any document shall include that document as amended, novated, assigned
or supplemented;
(d) a Clause or a Schedule is to a clause of or a schedule to this
Agreement;
(e) any Law, or to any specified provision of any Law, is a reference to
such Law or provision as amended, substituted or re-enacted.
2. REPRESENTATIONS AND WARRANTIES
On the date of this Agreement, and on the Delivery Date for each Aircraft,
Seller represents and warrants to Purchaser in accordance with Part A of
Schedule 4 and Purchaser represents and warrants to Seller in accordance with
Part B of Schedule 4.
3. AGREEMENT TO SELL AND PURCHASE
3.1 Aircraft Status. On and subject to the terms of this Agreement:
(a) except as specified herein, the Aircraft (including the Aircraft
Documents) will be sold by the Seller and purchased by the Purchaser
on the Delivery Date for such Aircraft in an "AS IS", "WHERE IS"
condition; and
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(b) Seller shall pass to Purchaser upon Delivery of such Aircraft good and
marketable title to such Aircraft (including the Aircraft Documents),
free and clear of any and all Security Interests other than Permitted
Liens.
3.2 Delivery Documents: At or before Delivery of each Aircraft:
(a) Seller shall deliver to Purchaser, the Bill of Sale for such Aircraft
duly executed by Seller;
(b) Seller shall have delivered to FAA Counsel an FAA Bill of Sale for
such Aircraft duly executed by Seller in favor of Purchaser, and shall
instruct FAA Counsel at Delivery for such Aircraft to file the FAA
Bill of Sale with the FAA;
(c) Purchaser shall deliver to FAA Counsel an FAA Form 8050-1 Application
for Registration for such Aircraft duly executed by Purchaser;
(d) Purchaser shall deliver to Seller an Acceptance Certificate for such
Aircraft duly executed by Purchaser; and
(e) Seller shall deliver such other documents as are reasonably necessary
to transfer to Purchaser good and marketable title to such Aircraft
(including the Aircraft Documents), free and clear of all Security
Interest (except Permitted Liens), and Purchaser shall deliver such
other documents as are reasonably necessary to effect registration of
the Aircraft in Purchaser's name with the FAA.
(f) Seller and Purchaser shall have received a written opinion from FAA
Counsel as to the status of the filings with the FAA in respect of the
Aircraft, and the absence of any Security Interests of record with the
FAA (other than Permitted Liens) in respect of the Aircraft.
The documents referred to in this Clause 3.2 are defined for purposes of
this agreement as the "Delivery Documents".
3.3 Security Interests: The Aircraft shall upon Delivery be free and clear of
any Security Interests (other than Permitted Liens) and claims of third
parties.
3.4 Passage of Title & Risk of Loss: Title to the Aircraft shall pass to
Purchaser when the Bill of Sale is delivered to Purchaser and the
Acceptance Certificate is delivered to Seller. Risk of loss, destruction
of, or damage to the Aircraft shall pass to Purchaser simultaneously with
transfer of title.
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3.5 Damage before Delivery: If after the Pre-Delivery Inspection but before
Delivery, an Aircraft suffers damage and the cost to repair such damage
is less than $100,000 in the aggregate, which does not constitute an
Event of Loss, Seller shall procure the repair of such damage in a
workmanlike manner. If after the Pre-Delivery Inspection but before
Delivery, an Aircraft suffers damage and the cost to repair such damage
is in excess of $100,000 in the aggregate, which does not constitute an
Event of Loss, then:
(a) Seller shall promptly notify Purchaser of the details of such damage;
(b) Seller shall determine and notify Purchaser as soon as reasonably
practicable whether, in Seller's reasonable opinion, such damage can
be economically repaired and the date by which such repair can
reasonably be expected to be completed;
(c) If Seller notifies Purchaser that such damage can be economically
repaired, Purchaser shall in light of Seller's notice, promptly notify
Seller whether Purchaser is prepared to proceed with the purchase of
the Aircraft, subject to the damage being repaired prior to the date
specified by Seller as contemplated by Clause (b), above (or such
later date as may be acceptable to Purchaser). If Purchaser is
prepared to proceed on the basis of the repair, Seller shall procure
the repair in a workmanlike manner. However if (i) such Aircraft
cannot be economically repaired, as reasonably determined by Seller,
(ii) the repair is not so completed and such Aircraft is not delivered
to Purchaser on or before the date specified by Seller as contemplated
by Clause (b), above (or such later date as may be acceptable to
Purchaser) or (iii) Purchaser reasonably declines to proceed on the
basis of the repair of such Aircraft and so notifies Seller, then no
party hereto shall have any further obligation or liability to the
other under this Agreement in respect of such Aircraft (and Seller and
Purchaser shall instruct the Escrow Company to return a portion of the
Deposit equal to [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] to Purchaser). In the
event such Aircraft can be economically repaired, as reasonably
determined by Seller, and Purchaser is willing to proceed with the
purchase after repair of such Aircraft, then Seller shall proceed with
such repairs and the parties hereto shall consummate this Agreement
with respect to the repaired Aircraft in accordance with the
provisions of this Agreement.
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3.6 Event of Loss Prior to Closing.
(a) Event of Loss. In the event that an Aircraft suffers an Event of Loss
prior to Delivery with respect to such Aircraft, then, with effect from the
date of such Event of Loss:
(i) this Agreement shall automatically terminate with respect to such
Aircraft suffering such Event of Loss;
(ii) Purchaser shall have no further obligation or liability to the Seller
with respect to such Aircraft under this Agreement,
(iii) Seller shall have no further obligation or liability to Purchaser
with respect to such Aircraft; and
(iv) for the avoidance of doubt, (A) each of the parties hereto expressly
acknowledges and agrees that, notwithstanding the termination of this
Agreement with respect to the Aircraft suffering the Event of Loss as
provided in this Clause 3.6(a), this Agreement shall remain in full force
and effect, and each party hereto shall remain bound in all respects in
accordance with the terms hereof, with respect to all other Aircraft that
have not suffered such Event of Loss and (B) Seller and Purchaser shall
instruct the Escrow Company to return a portion of the Deposit equal to
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] to Purchaser.
(b) Incipient Event of Loss. If circumstances are such that with the
passage of time and/or a relevant determination an Event of Loss might
arise with respect to any Aircraft and those circumstances continue for
more than twenty (20) days, then either Seller or Purchaser may at any time
thereafter terminate this Agreement with respect to such Aircraft by giving
notice to the other, in which case the provisions of Clause 3.6 (a) above
shall apply from and after the delivery of such notice.
3.7 Pre-Delivery Inspection.
The following is an additional condition to the obligation of the Purchaser
to acquire each Aircraft:
Seller shall make the Aircraft (including the Aircraft Documents for such
Aircraft) available to Purchaser in lots of four at the Expected Delivery
Location to enable Purchaser to conduct a ground inspection of such
Aircraft and an inspection of the Aircraft Documents for such Aircraft
(collectively, the "Pre-Delivery Inspection"). Subject to Clause 3.8, the
Pre-Delivery Inspection for such Aircraft and such Aircraft Documents shall
occur during a period of 15 days, commencing on the date that Seller
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notifies Purchaser that such Aircraft and such Aircraft Documents are
available for the Pre-Delivery Inspection at the Expected Delivery Location
and such Aircraft and such Aircraft Documents are in fact available to
Purchaser (the "Inspection Period"). The Pre-Delivery Inspection will be
conducted at Purchaser's expense, and shall include a power assurance run
of the Engines and auxiliary power unit of each Aircraft.
During the Pre-Delivery Inspection for such Aircraft, Purchaser shall have
the right to determine if (a) the condition of such Aircraft is consistent
in all material respects with the description of the Aircraft in the
Aircraft Specification Summary and (b) the Aircraft Documents for such
Aircraft include all of the documents listed and described in the Standard
Document List (the "Inspection Conditions"). If such Aircraft and Aircraft
Documents comply with the Inspection Conditions, Purchaser shall within two
(2) Business Days following completion of the Inspection Period for such
Aircraft notify Seller in writing whether any or all such Aircraft are
approved for purchase ("Written Approval"). If Purchaser has reasonably
determined that any such Aircraft or Aircraft Documents are not in
compliance with the Inspection Conditions, Purchaser shall within two (2)
Business Days following completion of the Inspection Period for such
Aircraft notify Seller in writing and describe in reasonable detail why
Purchaser has determined that such Aircraft or Aircraft Documents are not
in compliance with the Inspection Conditions (a "Rejection Notice"), but
Seller and Purchaser shall proceed with the sale and purchase of the
Aircraft for which Purchaser has provided a Written Approval to Seller in
accordance with the provisions of this Agreement. If Purchaser has provided
Seller with a Rejection Notice with respect to an Aircraft, Seller may, at
its option, within ten (10) Business Days of receipt of a Rejection Notice
(or such later date as Purchaser and Seller may agree), cure and correct
the condition of such Aircraft and such Aircraft Documents so as to cause
them to comply with the Inspection Conditions. If Seller causes such
Aircraft and Aircraft Documents to comply with the Inspection Conditions
within such ten (10) Business Day period (or such later date as Purchaser
and Seller may agree), Purchaser shall promptly deliver Seller a Written
Approval. If Seller does not cause such Aircraft and Aircraft Documents to
comply with the Inspection Conditions within such ten (10) Business Day
period (or such later date as Purchaser and Seller may agree), Purchaser
may elect, in its sole discretion, within five (5) Business Days after the
completion of such ten (10) Business Day period (or such later date as
Purchaser and Seller may agree), to either (i) accept such Aircraft and
such Aircraft Documents for purchase despite such non-compliance by
delivering to Seller a Written Approval (but notwithstanding acceptance of
such Aircraft for purchase under such conditions, Seller agrees that
Purchaser may make reasonable requests of Seller from time to time for
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co-operation in locating or obtaining information, records or parts for
such Aircraft, and Seller will in good faith use all reasonable efforts to
locate or obtain such information, records or parts; provided that Seller
shall not be required to purchase or pay for such information, records or
parts) or (ii) reject such Aircraft by delivering to Seller a final
Rejection Notice. If Purchaser delivers to Seller such final Rejection
Notice, (A) Seller shall be relieved of its obligation to sell, and
Purchaser shall be relieved of its obligation to buy, such Aircraft, (B)
this Agreement shall terminate with respect to such Aircraft, and (C)
Seller and Purchaser shall cooperate as may be necessary to cause a portion
of the Deposit equal to [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] for each rejected Aircraft to
be returned to Purchaser by the Escrow Company. Notwithstanding the
foregoing, if Purchaser gives Seller a Rejection Notice for an Aircraft
because the Aircraft Documents for such Aircraft are inadequate or
incomplete, and if such Aircraft Documents were delivered or were required
to be delivered to Seller under the Aircraft Sale and Purchase Agreement
between Seller and Jetran LLC ("Jetran") dated September 2, 2005 (the
"Jetran Purchase Agreement"), Seller shall use all reasonable efforts to
obtain and deliver all such Aircraft Documents to Purchaser as promptly as
possible, and Seller and Purchaser shall thereafter complete the sale and
purchase of such Aircraft in accordance with the provisions of this
Agreement.
If Purchaser fails to deliver to Seller any Written Approval or any
Rejection Notice within the time requirements set forth in the preceding
paragraph and such failure continues for five (5) days after Seller
delivers written notice of such failure to Purchaser, Seller shall have the
right to terminate this Agreement either with respect to such Aircraft or
with respect to the Agreement as a whole, at Seller's sole option.
3.8 Group I Aircraft.
Purchaser hereby acknowledges and agrees that prior to the date of this
Agreement Purchaser has commenced its Pre-Delivery Inspection with respect
to the Group I Aircraft. Seller and Purchaser acknowledge and agree that
Purchaser has not received all of the Aircraft Documents for such Aircraft.
Therefore, the Inspection Period for the Group I Aircraft and the Aircraft
Documents for such Aircraft shall end five (5) days after the date on which
Seller notifies Purchaser that all such Aircraft Documents have been
delivered to Purchaser at the Expected Delivery Location and all such
Aircraft Documents are in fact delivered to Purchaser at the Expected
Delivery Location.
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3.9 Maintenance and Services Agreement.
Purchaser and Seller hereby acknowledge that Purchaser and Hamilton
Aerospace Technologies, Inc. ("Hamilton") have been negotiating a
maintenance and services agreement providing for the repair and maintenance
of the Aircraft (the "Maintenance Agreement") and have substantially agreed
upon the commercial terms thereto. Purchaser and Hamilton have agreed to
negotiate in good faith and use commercially reasonable efforts to finalize
and execute the Maintenance Agreement no later than five (5) Business Days
after the date of this Agreement (the "Maintenance Agreement Deadline").
If, after using commercially reasonable efforts, Purchaser and Hamilton do
not enter into a Maintenance Agreement, in form and substance reasonably
satisfactory to Purchaser, by the Maintenance Agreement Deadline, Purchaser
may, in its sole discretion, terminate this Agreement by providing written
notice to Seller no later than two (2) Business Days after the Maintenance
Agreement Deadline. If Purchaser terminates this Agreement in accordance
with this Section 3.9, (a) Seller shall be relieved of its obligation to
sell, and Purchaser shall be relieved of its obligation to buy, any and all
of the Aircraft and (b) Seller and Purchaser shall cooperate as may be
necessary to cause the Deposit to be returned to Purchaser by the Escrow
Company.
4. CONDITIONS PRECEDENT
4.1 Seller Conditions:
Seller's obligation to sell each Aircraft to Purchaser shall be subject to
fulfilment of the Seller Conditions Precedent on or before the Final
Delivery Date for such Aircraft (except to the extent that Seller agrees in
writing in its absolute discretion to waive or defer any such condition).
The Seller Conditions Precedent have been inserted for Seller's benefit and
may be waived in writing, in whole or in part and with or without
conditions, by Seller.
If any of the Seller Conditions Precedent for any Aircraft remain
outstanding on the Final Delivery Date for such Aircraft and are not waived
or deferred in writing by Seller, Seller may at any time after close of
business in New York on the Final Delivery Date for such Aircraft terminate
its obligation to sell such Aircraft by notice to Purchaser, whereupon the
rights and obligations of the parties hereunder with respect to such
Aircraft shall cease and be discharged without further liability on the
part of either Seller or Purchaser (except that Seller and Purchaser shall
cooperate as may be necessary to cause a portion of the Deposit equal to
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] for each relevant Aircraft to be returned to Purchaser
by the Escrow Company).
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4.2 Purchaser Conditions:
Purchaser's obligation to purchase each Aircraft shall be subject to
fulfilment of each of the Purchaser Conditions Precedent on or before the
Final Delivery Date for such Aircraft (except to the extent that Purchaser
agrees in writing in its absolute discretion to waive or defer any such
condition).
The Purchaser Conditions Precedent have been inserted for Purchaser's
benefit and may be waived in writing, in whole or in part and with or
without conditions, by Purchaser.
If any of the Purchaser Conditions Precedent for any Aircraft remain
outstanding on the Final Delivery Date for such Aircraft and are not waived
or deferred in writing by Purchaser, Purchaser may at any time after close
of business in New York on the Final Delivery Date for such Aircraft
terminate its obligation to purchase such Aircraft by notice, whereupon the
rights and obligations of the parties hereunder with respect to such
Aircraft shall cease and be discharged without further liability on the
part of either Seller or Purchaser (except that Seller and Purchaser shall
cooperate as may be necessary to cause a portion of the Deposit equal to
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] for each relevant Aircraft to be returned to Purchaser
by the Escrow Company).
5. PURCHASE PRICE
5.1 Amount: The purchase price for each Aircraft shall be [CONFIDENTIAL PORTION
DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
(for each Aircraft, the "Purchase Price"), or an aggregate of [CONFIDENTIAL
PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] for all Aircraft.
(a) Seller acknowledges that prior to the execution of this Agreement,
Purchaser deposited [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION] (the "Deposit") with the Escrow
Company. The Deposit shall be applied in the prorated amount of
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] to the Purchase Price of each Aircraft as such
Aircraft is purchased by Purchaser hereunder. If the last Aircraft to be
purchased hereunder fails to meet the conditions precedent to Delivery set
forth herein or Purchaser otherwise rejects such last Aircraft in
accordance with the provisions of this Agreement, the remaining Deposit
will be promptly returned to Purchaser.
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(b) At the closing for each Aircraft at the time of Delivery, Purchaser
will pay to the Seller the Purchase Price for such Aircraft (less the
portion of the Deposit referred to above for such Aircraft, which amount
will be paid to Seller by the Escrow Company).
5.2 Seller's Account: The Purchase Price for each Aircraft shall be paid by
wire transfer of immediately available U.S. Dollar funds to the following
account:
Bank: [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]
ABA Number: [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]
Account Number: [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]
Swift Code: [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]
Account Name: [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]
5.4 Payment of Taxes:
(a) The parties will co-operate so that the Delivery Location shall be in a
jurisdiction where the imposition upon Seller and/or Purchaser and/or the
Aircraft of any Sales Taxes arising out of the sale of the Aircraft under
this Agreement is minimized.
(b) Purchaser will indemnify and hold Seller, its affiliates and
subsidiaries and each of their respective officers, directors, members,
managers and employees ("Tax Indemnitees"), harmless from and against any
and all Sales Taxes and expenses assessed against any Tax Indemnitee,
Purchaser or the Aircraft or any part thereof by any Government Entity
resulting from or arising in connection with the sale of the Aircraft
hereunder.
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(c) All payments to be made by Purchaser under this Agreement shall be made
in full without set off or counterclaim whatsoever and shall be made in
full without any deduction or withholding whatsoever. If however a
deduction or withholding for Taxes is required by law, Purchaser shall:
(i) immediately pay to Seller such additional amount so that the net
amount received by Seller will equal the full amount which would have
been received by it had no such deduction or withholding been made;
(iii) pay to the relevant taxation authority or other authorities within
the time allowed by law the full amount of the deduction or
withholding (including, but without prejudice to the generality of the
foregoing, the full amount of any deduction or withholding from any
additional amount paid pursuant to this sub-clause); and
(iv) provide Seller within the period for payment permitted by the relevant
law with an official receipt of the relevant taxation authorities for
all amounts so deducted or withheld or if such receipts are not issued
by the taxation authorities concerned, a certificate of deduction or
equivalent evidence of the relevant deduction or withholding.
6. ACCEPTANCE
6.1 Subject to Clause 3.7, Purchaser shall execute and deliver to Seller on the
Delivery Date for an Aircraft an Acceptance Certificate in respect of such
Aircraft. Delivery of the Acceptance Certificate for an Aircraft by
Purchaser to Seller shall be conclusive proof that Purchaser has examined
and investigated such Aircraft and that it his acceptable and in every way
satisfactory to Purchaser.
7. DELIVERY
7.1 Delivery: Subject to satisfaction (or waiver or deferral with the agreement
in writing of Seller) of the Seller Conditions Precedent, Seller shall on
the Delivery Date for each Aircraft: (a) transfer title of such Aircraft
through the execution and delivery of the applicable Delivery Documents,
(b) deliver such Aircraft and the Aircraft Documents for such Aircraft to
Purchaser; and (c) transfer care, custody and control of such Aircraft to
Purchaser.
7.2 Delivery Date: With respect to each Aircraft, Delivery will take place no
later than fourteen (14) days after Purchaser delivers a Written Approval
to Seller for such Aircraft. Purchaser hereby agrees that if Delivery of
any Aircraft does not occur within fourteen (14) days after Purchaser
delivers a Written Approval to Seller for such Aircraft because of a
material default by Purchaser, Seller shall have the right to terminate
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this Agreement with respect to such Aircraft; provided, however, that if
Delivery of any Aircraft does not occur within fourteen (14) days after
Purchaser delivers a Written Approval to Seller for such Aircraft because
of Purchaser's failure to pay the Purchase Price for such Aircraft, Seller
shall have the right to terminate this Agreement either with respect to
such Aircraft or with respect to the Agreement as a whole, at Seller's sole
option.
7.3 Delivery Location: The Bill of Sale for each Aircraft shall be delivered to
Purchaser while such Aircraft is located in one of the following locations
(the "Delivery Location"):
(a) the Expected Delivery Location; or
(b) with the agreement of the parties, another jurisdiction that the
parties are satisfied that no Sales Taxes will be imposed upon any Tax
Indemnitee, Purchaser or such Aircraft as a result of the transfer of
title to such Aircraft while such Aircraft is located in such
jurisdiction, other than any Sales Taxes which Seller or Purchaser may
agree in writing to bear.
7.4 Tender and Acceptance of Delivery: On the Delivery Date for each Aircraft,
subject to this Agreement, Seller shall tender good and marketable title to
such Aircraft for Delivery and Purchaser shall accept Delivery of such
Aircraft by executing and delivering the Acceptance Certificate to Seller.
Seller and Purchaser each agrees to perform and observe all terms,
conditions, obligations and agreements to be performed or observed by it
hereunder and under the other Transaction Documents. Time is of the
essence, and the parties agree to take all action as may be reasonably
required to complete the purchase and sale of the Aircraft as promptly as
possible.
8. AIRCRAFT CONDITION & WARRANTIES
8.1 Limitation on Warranties.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE OTHER
TRANSACTION DOCUMENTS TO THE CONTRARY, AS BETWEEN THE SELLER AND PURCHASER,
PURCHASER SHALL UNCONDITIONALLY ACCEPT EACH AIRCRAFT, IF ANY, "AS IS,"
"WHERE IS" AND "WITH ALL FAULTS." THE REPRESENTATIONS, WARRANTIES AND
COVENANTS SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS
ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER OF ANY KIND WHATSOEVER, WHETHER WRITTEN, ORAL, EXPRESS
OR IMPLIED, AND SELLER HAS NOT MADE AND SELLER SHALL NOT BE DEEMED TO HAVE
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MADE, AND SELLER HEREBY DISCLAIMS, (I) ANY REPRESENTATION, WARRANTY OR
COVENANT (EXCEPT THE REPRESENTATIONS, WARRANTIES AND COVENANTS SET FORTH IN
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH SELLER IS A
PARTY) AS TO THE AIRWORTHINESS, CONDITION, DESIGN, VALUE, OPERATION,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF ANY AIRCRAFT
(OR ANY PART THEREOF), THE FREEDOM OF ANY AIRCRAFT (OR ANY PART THEREOF)
FROM ANY LATENT OR OTHER DEFECT (WHETHER OR NOT DISCOVERABLE) OR ANY ACTUAL
OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT OR THE LIKE, OR
THE COMPLIANCE OF ANY AIRCRAFT (OR ANY PART THEREOF) WITH ANY APPLICABLE
LAWS OR REGULATIONS, (II) ALL OTHER REPRESENTATIONS, WARRANTIES AND
COVENANTS, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED (EXCEPT THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS TO WHICH SELLER IS A PARTY); IT BEING UNDERSTOOD THAT
ALL SUCH FOREGOING DISCLAIMED RISKS, AS BETWEEN SELLER AND PURCHASER, ARE
TO BE BORNE SOLELY BY PURCHASER.
9. REGISTRATION FEES
Purchaser shall bear any fees payable to the FAA in connection with the
registration of Purchaser's title to the Aircraft with the FAA. Seller
shall bear all other fees payable to the FAA in connection with the
transfer of title to the Aircraft hereunder. Seller and Purchaser shall
share equally the fees and expenses payable to FAA Counsel for the services
rendered by FAA Counsel for the transactions contemplated by this
Agreement.
10. INDEMNIFICATION.
(a) Indemnification of Purchaser. Seller agrees to indemnify, defend and
hold harmless Purchaser and Purchaser's subsidiaries and affiliates, and
their respective members, managers, shareholders, partners, contractors,
officers, directors, representatives, agents and employees (collectively,
"Purchaser Indemnitees") from and against any and all Losses suffered or
incurred by any Purchaser Indemnitee to the extent the Losses are based
upon or arise out of (i) the purchase, manufacture, ownership, possession,
registration, performance, transportation, management, sale, control,
inspection, use or operation, design, condition, testing, delivery,
leasing, maintenance, repair, service, modification, overhaul, replacement,
removal or redelivery of any Aircraft, or any loss of or damage to such
Aircraft, or otherwise in connection with such Aircraft or relating to loss
or destruction of or damage to any property, or death or injury to any
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person caused by, relating to or arising from or out of (in each case
whether directly or indirectly) any of the foregoing matters, in each case
to the extent occurring or attributable to the period of time prior to
Delivery on the applicable Delivery Date for such Aircraft; (ii) any
design, article or material in any Aircraft or the operation or use thereof
constituting an infringement of patent, copyright, trademark, design or
other proprietary right or a breach of any obligation of confidentiality
owed to any person to the extent that any Losses attributable to the
matters described in this subclause (ii) arise out of any act, omission,
event or circumstance occurring prior to the Delivery on the applicable
Delivery Date; (iii) any breach by Seller of any representation or warranty
of Seller contained herein or in any other Transaction Document; or (iv)
any failure of Seller to pay, perform or comply with any covenant, duty or
obligation of Seller contained herein or in any other Transaction Document;
provided that the liability of the Seller for any obligation under clauses
(i) or (ii) shall be solely for Losses which arise directly from a third
party claim against a Purchaser Indemnitee. The indemnity set forth in this
Clause 10(a) shall not apply to any Loss (1) which is attributable to the
willful misconduct or gross negligence of Purchaser or its employees,
servants or agents, (2) which results from the breach by Purchaser of any
representation, warranty or covenant made herein, in any of the other
Transaction Documents, (3) which are ordinary or usual operating or
overhead expenses of Purchaser (except to the extent the same arise on the
occurrence of any breach by Seller of its obligations under this Agreement
or the other applicable Transaction Documents), (4) which are required to
be borne by Purchaser in accordance with any other express provision
contained in this Agreement or any other Transaction Document.
(b) Indemnification of Seller. The Purchaser agrees to indemnify, defend
and hold harmless Seller and Seller's subsidiaries and affiliates, and
their respective members, managers, shareholders, partners, contractors,
officers, directors, representatives, agents and employees (collectively,
"Seller Indemnitees") from and against any and all Losses suffered or
incurred by any Seller Indemnitee, to the extent the Losses are based upon
or arise out of (i) the purchase, manufacture, ownership, possession,
registration, performance, transportation, management, sale, control,
inspection, use or operation, design, condition, testing, delivery,
leasing, maintenance, repair, service, modification, overhaul, replacement,
removal or redelivery of any Aircraft, or any loss of or damage to such
Aircraft, or otherwise in connection with such Aircraft or relating 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 case
whether directly or indirectly) any of the foregoing matters, in each case
to the extent occurring or attributable to the period of time after
-15-
Delivery on the applicable Delivery Date for such Aircraft, (ii) any
design, article or material in any Aircraft or the operation or use thereof
constituting an infringement of patent, copyright, trademark, design or
other proprietary right or a breach of any obligation of confidentiality
owed to any person to the extent that any Losses attributable to the
matters described in this subclause (ii) arise out of any act, omission,
event or circumstance occurring after Delivery on the applicable Delivery
Date; (iii) any breach by the Purchaser of any representation or warranty
of the Purchaser contained herein or in any other Transaction Document; or
(iv) any failure of the Purchaser to pay, perform or comply with any
covenant, duty or obligation of the Purchaser contained herein or in any
other Transaction Document; provided that the liability of the Purchaser
for any obligation under clauses (i) and (ii) shall be solely for Losses
which arise directly from a third party claim against a Seller Indemnitee.
The indemnity set forth in this Clause 10(b) shall not apply to any Loss
(1) which is attributable to the willful misconduct or gross negligence of
Seller or any of its employees, servants or agents, (2) which results from
the breach by Seller of any representation, warranty or covenant made
herein, in any of the other Transaction Documents, (3) which are ordinary
or usual operating or overhead expenses of Seller (except to the extent the
same arise on the occurrence of any breach by Purchaser of its obligations
under this Agreement or the other applicable Transaction Documents), or (4)
which are required to be borne by Seller in accordance with any other
express provision contained in this Agreement or any other Transaction
Document.
11. SUBSTITUTE AIRCRAFT
Pursuant to the Jetran Purchase Agreement, Seller agreed to purchase from
Jetran certain aircraft, including the Aircraft. If Jetran fails to sell to
Seller any of the Aircraft pursuant to the terms of the Jetran Purchase
Agreement, Seller shall substitute another aircraft (with aircraft
documents) of equal or greater value and utility for such Aircraft. In such
event, such substituted aircraft shall replace such Aircraft for all
purposes under this Agreement.
12. INSURANCE
Purchaser shall maintain, or cause to be maintained, the liability
insurance described in Schedule 9 with respect to each Aircraft, with
Seller, Jetran, LLC, Jetran, International, Ltd., GE Capital Aviation
Services, Inc. and GE Commercial Aviation Services Limited, and their
respective successors and permitted assigns and each of their respective
shareholders, subsidiaries, affiliates, partners, contractors, officers,
directors, representatives, agents and employees named as additional
insureds (collectively, the "Additional Insureds"), from the applicable
Delivery Date until the second anniversary of such Delivery Date. The
insurance cover for each such Aircraft shall be maintained in effect with
insurers of nationally or internationally recognized responsibility.
Purchaser shall deliver a certificate evidencing such insurance to Seller
prior to Delivery with respect to each such Aircraft and upon each renewal
or replacement of cover.
-16-
13. FURTHER PROVISIONS
13.1 Benefit of Agreement: Neither party shall assign or transfer all or any of
its rights and/or obligations under this Agreement without the prior
written consent of the other party.
13.2 Counterparts: This Agreement may be executed in any number of separate
counterparts and each counterpart shall when executed and delivered be an
original document but all counterparts shall together constitute one and
the same instrument.
13.3 Waivers and Variation: Rights of a party arising under this Agreement or
the general law shall not be waived or varied unless done so expressly in
writing and only then in that specific case, on that specific occasion and
on any terms specified.
13.4 Third Party Rights: A person who is not a party to this Agreement has no
direct right to enforce any term of this Agreement nor to object or be
consulted about any amendments to this Agreement.
13.5 Notices: Any notice in connection with this Agreement shall be given in
writing and in English. A notice shall be delivered personally or by post,
email or facsimile to the address or contact details specified below (or to
such other address or contact details as may otherwise be notified by the
receiving party to the sending party from time to time). A notice shall be
deemed received - if posted, three (3) days after it is mailed; if sent by
hand or courier, when it is delivered; if faxed, when the fax is sent with
a clear transmission report:
to Seller at:
JetGlobal, LLC
c/o BCI Aircraft Leasing, Inc.
One IBM Plaza
330 North Wabash Avenue, Suite 2802
Chicago, Illinois 60611
Attention:Brian N. Hollnagel
Fax: (312) 329-1250
with copies to:
Global Aircraft Solutions, Inc.
6901 South Park Avenue
Tucson, Arizona 85706
Attention: John Sawyer
Fax: (520) 741-1430
-17-
Brian D. Fitzgerald, Esq.
Rothgerber Johnson & Lyons, LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
Fax: (303) 623-9222
to Purchaser at:
Aviation Finance Group, LLC
18604 Phantom Street,
Victorville, California 92394
Attention:Craig Garrick
Fax: (760) 246-1186
13.6 Invalidity of any Provision: If any part of this Agreement becomes
invalid, illegal or unenforceable under any applicable law, the
validity, legality and enforceability of the remaining provisions shall
not in any way be affected.
13.7 Entire Agreement: This Agreement together with the schedules attached
hereto constitutes the entire agreement between the parties hereto in
relation to the sale and purchase of the Aircraft and supersedes all
previous proposals, representations, agreements and other written and
oral communications in relation thereto.
13.8 Costs and Expenses: Except where this Agreement states differently, each
party shall bear its own fees, costs and expenses arising out of or
connected with this Agreement. The prevailing party in any action or
proceeding between Seller and Purchaser to enforce the terms of this
Agreement shall be entitled to recover from the other party all its
costs and expenses, including reasonable attorneys' fees, incurred by
such prevailing party in such action or proceeding.
13.9 Further Assurances: Each party agrees from time to time to do and
perform such other and further acts and execute and deliver any and all
such other documents and instruments as may be required by law or
reasonably requested by the other party at the other party's expense to
establish, maintain and protect the rights and remedies of the other
party and carry out and effect the intent and purpose of this Agreement.
13.10 Post-Delivery Matters: Seller shall provide Purchaser with a legal
opinion of FAA Counsel as to the recordation by the FAA of this the FAA
Bill of Sale and the other instruments referenced for filing with the
FAA herein, promptly following such recordation.
-18-
14. GOVERNING LAW
This Agreement in all respects shall be governed by, and construed in
accordance with, the laws of the State of California. The U.N. Convention
on Contracts for the International Sales of Goods is not applicable to this
Agreement and all of its terms must be construed in accordance with the law
applicable to domestic transactions in the State of California.
15. BROKERS AND OTHER THIRD PARTIES
15.1 No Brokers: Each party represents and warrants to the other that it has
not paid, agreed to pay or caused to be paid directly or indirectly in
any form, any commission, percentage, contingent fee, brokerage or other
similar payments of any kind, in connection with the transactions
contemplated hereby or the establishment or operation of this Agreement,
to any Person (other than fees payable by each party to its legal
advisers or any management or related fees and expenses which may be
paid or payable to Seller).
15.2 Indemnity: Each party agrees to indemnify and hold the other harmless
from and against any and all claims, suits, damages, costs and expenses
(including, but not limited to reasonable attorneys' fees) asserted by
any agent, broker or other third party for any commission or
compensation of any nature whatsoever based upon this Agreement or the
Transaction Documents or the Aircraft, if such claim, suit, damage, cost
or expense arises out of any breach by the indemnifying party, its
employees or agents of Clause 13.1.
16. CONFIDENTIALITY
The parties will hold the financial terms of this Agreement, any
non-public financial information concerning any of the parties and all
non-public information obtained pursuant to the requirements hereof
which has been identified as confidential by any party, except as
required by any law, rule or regulation of any governmental agency or
representative thereof, delivered in response to legal process or
delivered to independent auditors and counsel to the disclosing party.
17. COOPERATION
Subject to the last sentence of this Clause 17, Seller hereby agrees
that Seller will advise Purchaser of opportunities that Seller becomes
aware of for the sale or lease of the Aircraft by third parties, and
Seller also agrees that in connection with such opportunities, to use
all reasonable efforts in good faith to, if the circumstances so arise,
to invite third parties who may have an interest in purchasing or
-19-
leasing such Aircraft to make offers to Purchaser for the purchase or
lease of such Aircraft. Without limiting the foregoing, Seller agrees to
provide Purchaser reasonable assistance and cooperation with Purchaser's
efforts to sell or lease such Aircraft to third parties. The foregoing
shall not be deemed to create an agency relationship between Seller and
Purchaser for the sale or lease of the Aircraft, and Seller shall not
have any power to bind Purchaser or impose any obligation on Purchaser
to sell or lease an Aircraft to any person. Unless otherwise agreed upon
by Seller and Purchaser, Seller shall not be entitled to any commission,
fee or other payment from Purchaser in connection with the performance
of its obligations under this Clause 17. None of the provisions of this
Clause 17 shall in any way limit or restrict the ability of Seller or
any its affiliates to sell, lease, dispose of or otherwise manage any
aircraft that Seller or any its affiliates own (including beneficial
ownership) or have the contractual right or obligation to purchase as of
the date of this Agreement ("Seller's Existing Aircraft") and Seller
shall not be required to advise or notify Purchaser of any opportunity
that relates to the sale, lease or disposal of any of Seller's Existing
Aircraft.
18. ASSIGNMENT OF WARRANTIES
Effective at the time of Delivery of an Aircraft, Seller hereby assigns
(and hereafter shall cause to be assigned) to Purchaser any and all
rights as may exist under any warranty, product agreement or guaranty of
the manufacturer of the Aircraft or of any maintenance or overhaul
facility that has provided any maintenance or services in respect of the
Aircraft, or any part thereof, and of any subcontractor or supplier or
vendor in respect of any thereof, to the extent that such rights are
assignable, have not expired, and are not extinguished as a result of
this Agreement. In respect of any of the foregoing that are not
assignable to Purchaser, Seller agrees, on request of Purchaser and at
Purchaser's expense, to take such action as may reasonably be necessary
to permit the enforcement of all such rights as directed by Purchaser
for the benefit of Purchaser. Seller agrees from time to time to execute
or to cause the execution of all such documents and agreements as may be
necessary to further evidence the assignments hereby made or
contemplated.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY BLANK.]
-20-
EXECUTION PAGE
IN WITNESS whereof this Agreement has been signed on the day and year first
above written
Seller
JETGLOBAL, LLC
By: /S/ Brian Hollnagel
-------------------
Name: Brian Hollnagel
Title: Manager
Purchaser
AVIATION FINANCE GROUP, LLC
By: /s/ Craig Garrick
-----------------
Name: Craig Garrick
Title: President
-S-
SCHEDULE1
DESCRIPTION OF AIRCRAFT
--------------- ------------- ----------- ------------
U.S. NO. 1 ESN NO. 2 ESN
MSN REG. NO. JT8D-15A JT-8D-15A
--------------- ------------- ----------- ------------
23079 N307DL 709163 709143
--------------- ------------- ----------- ------------
23084 N312DL 709118 709130
--------------- ------------- ----------- ------------
23085 N313DL 709123 709160
--------------- ------------- ----------- ------------
23087 N315DL 709120 709165
--------------- ------------- ----------- ------------
23088 N316DL 709125 709195
--------------- ------------- ----------- ------------
23089 N317DL 709132 709164
--------------- ------------- ----------- ------------
23090 N318DL 709166 709183
--------------- ------------- ----------- ------------
23092 N320DL 709115 709159
--------------- ------------- ----------- ------------
23093 N321DL 709184 709152
--------------- ------------- ----------- ------------
23094 N322DL 709133 709129
--------------- ------------- ----------- ------------
23099 N327DL 717159 709186
--------------- ------------- ----------- ------------
23608 N381DL 709150 709127
--------------- ------------- ----------- ------------
Schedule 1- 1-
SCHEDULE 2 DEFINITIONS
As used in this Aircraft Sale & Purchase Agreement, the following words will
have the meanings ascribed to them in this Schedule 2.
"Acceptance Certificate" means a certificate of acceptance substantially in the
form of Schedule 6;
"Additional Insureds" is defined in Clause 12;
"Aircraft" means the twelve Boeing Model 737-200 aircraft described in Schedule
1, together with the Engines and all Parts installed on or attached to such
aircraft or removed from such aircraft but belonging thereto (which term
includes, where the context admits, a separate reference to all Engines, Parts
and Aircraft Documents);
"Aircraft Documents" means for each Aircraft, all logs, manuals, inspection
reports, modification and overhaul records, certificates, technical data, and
other records and information pertaining to such Aircraft, including the back to
birth traceability records for all life limited Parts, which are required to be
maintained in accordance with the requirements of Delta's FAA Part 121
maintenance program.
"Aircraft Specification Summary" means the specification sheet set forth in
Schedule 7;
"Bill of Sale" means for each Aircraft, the warranty bill of sale substantially
in the form of Schedule 5;
"Business Day" means a day (other than a Saturday or Sunday) on which banks are
open for business in New York and California;
"Delivery" means for each Aircraft, the transfer of title of such Aircraft and
transfer of care, custody and control of such Aircraft by Seller to Purchaser
hereunder;
"Delivery Date" means for each Aircraft, the date upon which the Delivery of
such Aircraft occurs.
"Delivery Documents" is defined in Clause 3.2;
"Delivery Location" is defined in Clause 7.3;
"Engines" means the Pratt & Whitney Model JT8D-15A engines specified in Schedule
1, together with all equipment and accessories belonging to, installed in, or
appurtenant to, such engines;
"Escrow Company" means Insured Aircraft Title Service, Inc., 4848 SW 36th
Street, Oklahoma City, Oklahoma 73179.
Schedule 2- 1-
"Event of Loss" means with respect to an Aircraft (including for the purposes of
this definition the Airframe):
(a) the actual or constructive total loss of such Aircraft (including any
damage to such Aircraft which results in an insurance settlement on the
basis of a total loss, or requisition for use or hire which results in an
insurance settlement on the basis of a total loss); or
(b) such Aircraft being destroyed, damaged beyond economic repair or
permanently rendered unfit for normal use for any reason whatsoever; or
(c) the requisition of title or other compulsory acquisition of title for any
reason of such Aircraft by the government of the United States or any other
authority (whether de jure or de facto); or
(d) the hijacking, theft, disappearance, condemnation, confiscation, seizure,
detention or requisition for use or hire of such Aircraft which deprives
Seller or any Person permitted by Seller to have possession and/or use of
such Aircraft of its possession and/or use for more than 15 days (or 30
days, in the case of requisition for use or hire by the government of the
State of Registration);
"Expected Delivery Location" is Southern California Logistics Airport (VCV),
Victorville, California;
"FAA" means the United States Federal Aviation Administration;
"FAA Bill of Sale" for each Aircraft, an FAA Form 8050-2 bill of sale.
"FAA Counsel" means Daugherty Fowler Peregrin Haught & Jenson, the address of
which is 204 N. Robinson, Suite 900, Oklahoma City, Oklahoma 73102, facsimile
no. (405) 232-0865;
"Final Delivery Date" means for each Aircraft, fourteen (14) days after
Purchaser delivers a Written Approval to Seller for such Aircraft;
"Government Entity" means:
(a) any national government, political subdivision thereof, or local
jurisdiction therein;
(b) any instrumentality, board, commission, court, or agency of any of the
above, however constituted; and
(c) any association, organisation, or institution of which any of the above is
a member or to whose jurisdiction any thereof is subject or in whose
activities any of the above is a participant;
Schedule 2- 2-
"Group I Aircraft" means the following Aircraft: (a) the Aircraft with
Manufacturer's Serial Number 23084; (b) the Aircraft with Manufacturer's Serial
Number 23085; (c) the Aircraft with Manufacturer's Serial Number 23087; and (d)
the Aircraft with Manufacturer's Serial Number 23608;
"Guarantor" means BCI Aircraft Leasing, Inc., an Illinois corporation;
"Guaranty" means the unconditional guaranty agreement executed by Guarantor in
favor of Purchaser, in form and substance satisfactory to Purchaser,
guaranteeing the prompt payment and performance by Seller of its obligations
hereunder and under the other Transaction Documents;
"Inspection Conditions" is defined in Clause 3.7;
"Inspection Period" is defined in Clause 3.7;
"Jetran" is defined in Clause 3.7;
"Jetran Purchase Agreement" is defined in Clause 3.7;
"Law" includes (a) any statute, decree, constitution, regulation, order,
judgement or other directive of any Government Entity; (b) any treaty, pact,
compact or other agreement to which any Government Entity is a signatory or
party; (c) any judicial or administrative interpretation or application of any
Law described in (a) or (b) above; and (d) any amendment or revision of any Law
described in (a), (b) or (c) above;
"Losses" means losses, liabilities, claims, proceedings, penalties, judgments,
damages, costs and expenses;
"Manufacturer" means The Boeing Company, a Delaware corporation;
"Part" means any part, component, appliance, module, accessory, instrument,
furnishing or other equipment (other than a complete Engine) installed on or
attached to an Aircraft or Engine or removed therefrom but belonging thereto or
furnished with the Aircraft on the Delivery Date;
"Permitted Lien" means any Security Interest created by or resulting from debts
or liabilities or actions of Purchaser;
"Person" means any individual person, corporation, partnership, firm, joint
stock company, joint venture, trust, estate, unincorporated organisation,
association, Government Entity, or organisation or association of which any of
the above is a member or a participant;
"Pre-Delivery Inspection" is defined in Clause 3.7.
Schedule 2- 3-
"Purchase Price" is defined in Clause 5.1;
"Purchaser Conditions Precedent" means for each Aircraft, the conditions set out
in Part B of Schedule 3;
"Rejection Notice" is defined in Clause 3.7.
"Sales Taxes" means any and all present and future sales, use, excise, stamp,
transfer, value added, gross receipts or other taxes, duties, withholdings,
levies, assessments, imposts, fees and other governmental charges of all kinds
that may be imposed on any Tax Indemnitee, Purchaser or the Aircraft (or any
Engine) by any Government Entity in any jurisdiction as a result of the sale or
purchase of the Aircraft under this Agreement, together with any penalties,
fines, surcharges and interest thereon and any additions thereto;
"Security Interest" means any mortgage, charge, pledge, lien, encumbrance,
assignment, hypothecation, right of set-off or any other agreement or
arrangement having the effect of conferring security;
"Seller Conditions Precedent" means for each Aircraft, the conditions specified
in Part A of Schedule 3;
"Services" is defined in the Maintenance and Service Agreement;
"Standard Document List" means the list of aircraft documents set forth in
Schedule 8;
"Tax Indemnitee" is defined in Clause 5.4;
"Transaction Documents" means this Agreement, the Bill of Sale, the FAA Bill of
Sale, the Acceptance Certificate, any all other agreements, documents or
instruments entered into in connection herewith or therewith, and any agreement
amending or supplementing any of the foregoing documents;
"US$" and "Dollars" means the lawful currency of the United States of America,
and (in relation to all payments in Dollars to be made under this Agreement)
same day funds.
"Written Approval" is defined in Clause 3.7.
Schedule 2- 4-
SCHEDULE 3
CONDITIONS PRECEDENT
Part A
Seller Conditions Precedent
For each Aircraft:
1. Seller shall concurrently with Delivery receive the Acceptance Certificate
duly executed by Purchaser;
2. Seller shall have received at Delivery, the Purchase Price;
3. Seller shall be satisfied that the Delivery Location, and the arrangements
described in Clause 7, do not give rise to any Sales Taxes, other than
Sales Taxes which Purchaser or Seller shall have agreed in writing to bear;
4. Purchaser shall have pre-positioned in escrow with FAA Counsel the
documents required to be delivered by Purchaser to FAA counsel in
accordance with the Agreement;
5. The representations given by Purchaser in Part B of Schedule 4 shall be
true and accurate on the Delivery Date;
6. Purchaser shall not be in material default of its obligations under this
Agreement;
7. No change having occurred after the date of this Agreement in any
applicable Law which would make it illegal for Seller to perform any of its
obligations under this Agreement (and any other documents to be entered
into pursuant hereto); provided that if any such change has occurred the
parties may but shall not be obliged to use all reasonable co-operative
endeavours to restructure the transaction contemplated by such documents so
as to avoid the aforementioned illegality; and
8. A copy of a resolution of the manager (or other appropriate officials) of
Purchaser, certified by a manager or official of Purchaser as true and
correct and in full force and effect, duly authorizing the purchase of the
Aircraft pursuant to this Agreement, and the execution, delivery and
performance by Purchaser of this Agreement and the other Transaction
Documents to which it is a party.
9. Seller shall have received the insurance certificate described in Clause
12.
Schedule 3 - 1
Part B
Purchaser Conditions Precedent
For each Aircraft:
1. Purchaser shall have received the Bill of Sale and the FAA Bill of Sale in
respect of such Aircraft, duly executed by Seller;
2. Purchaser shall have reasonably determined, in accordance with Clause 3.7,
that such Aircraft and the Aircraft Documents for such Aircraft are in
compliance with the Inspection Conditions.
3. Purchaser shall be satisfied that the Delivery Location, and the
arrangements described in Clause 7, do not give rise to any Sales Taxes,
other than any Sales Taxes which Seller or Purchaser shall have agreed in
writing to bear;
4. Purchaser shall have pre-positioned in escrow with FAA Counsel the
documents required to be delivered by Purchaser to FAA counsel in
accordance with the Agreement;
5. The Aircraft shall not have suffered an Event of Loss or unrepaired damage
as of the Delivery;
6. The representations given by Seller in Part A of Schedule 4 shall be true
and accurate on the Delivery Date;
7. No change having occurred after the date of this Agreement in any
applicable Law which would make it illegal for Purchaser to perform any of
its obligations under this Agreement (and any other documents to be entered
into pursuant hereto); provided that if any such change has occurred the
parties may but shall not be obliged to use all reasonable co-operative
endeavours to restructure the transaction contemplated by such documents so
as to avoid the aforementioned illegality.
8. The Seller not being in material default of its obligations under this
Agreement.
9. A copy of a resolution of the manager (or other appropriate officials) of
Seller, certified by a manager or official of Seller as true and correct
and in full force and effect, duly authorizing the sale of the Aircraft
pursuant to this Agreement and the execution, delivery and performance by
Seller of this Agreement and the other Transaction Documents to which it is
a party.
Schedule 3 - 2
10. Purchaser shall have received a current non-incident statement in respect
of such Aircraft, including each Engine.
11. Purchaser shall have received a currently, valid airworthiness certificate
for such Aircraft, issued by the FAA.
12. Purchaser shall have received the Guaranty from the Guarantor, together
with a certified copy of a resolution of the board of directors of
Guarantor, authorizing the execution, delivery and performance of the
Guaranty by Guarantor.
Schedule 3 - 3
SCHEDULE 4
REPRESENTATIONS AND WARRANTIES
Part A
Seller's Representations And Warranties
Seller represents and warrants to Purchaser on the date hereof and on the
Delivery Date for each Aircraft as follows:
o Seller duly exists under the laws of its state of organization in the
United States of America and has the power to enter into and implement
the transactions contemplated by the Transaction Documents to which it
is a party;
o the execution, delivery and performance of the Transaction Documents
to which it is a party have been duly authorised by all necessary
action on the part of Seller;
o the Transaction Documents to which it is a party constitute legal,
valid, binding and enforceable obligations of Seller;
o each consent required to authorize, or required in connection with the
execution, delivery or performance by Seller, or required for the
legality, validity or enforceability of the Transaction Documents to
which it is a party, has been obtained and is in full force and
effect, and there is no default in the observance or performance of
any of the conditions and restrictions (if any) imposed on or in
connection therewith; and
o the execution, delivery and performance by Seller of the Transaction
Documents to which it is a party will not (i) conflict with, or result
in any material breach of, any of the terms of, or constitute a
default under, any agreement or document to which it is a party or by
which it or any of its property or assets may be bound or (ii)
contravene or conflict with the provisions of its constitutive
documents.
Schedule 4 - 1
Part B
Purchaser's Representations And Warranties
Purchaser represents and warrants to Seller on the date hereof and on the
Delivery Date for each Aircraft as follows:
o Purchaser duly exists under the laws of its state of organization in
the United States of America and has the power to enter into and
implement the transactions contemplated by the Transaction Documents
to which it is a party;
o the execution, delivery and performance of the Transaction Documents
to which it is a party have been duly authorised by all necessary
corporate action on the part of Purchaser;
o the Transaction Documents to which it is a party constitute legal,
valid, binding and enforceable obligations of Purchaser;
o each consent required to authorize, or required in connection with the
execution, delivery or performance by Purchaser, or required for the
legality, validity or enforceability of the Transaction Documents to
which it is a party has been obtained and is in full force and effect,
and there is no default in the observance or performance of any of the
conditions and restrictions (if any) imposed on or in connection
therewith; and
o the execution, delivery and performance by Purchaser of the
Transaction Documents to which it is a party will not (i) conflict
with, or result in any material breach of, any of the terms of, or
constitute a default under any agreement or document to which it is a
party or by which it or any of its property or assets may be bound or
(ii) contravene or conflict with the provisions of its constitutive
documents.
Schedule 4 - 2
SCHEDULE 5
AIRCRAFT BILL OF SALE
One (1) B737-200 Aircraft
manufacturer's serial number ___________
WHEREAS, JETGLOBAL, LLC, as seller (the "Seller"), is the owner of the aircraft,
engines, equipment and documents described below (hereinafter referred to as the
"Aircraft"):
o B737-200 aircraft bearing manufacturer's serial number ________; with
two Pratt & Whitney model JT8D-15A engines bearing manufacturer's
serial numbers __________ and ______________; and
o all parts, components, appliances, modules, accessories, instruments,
furnishings and other equipment installed on or attached to such
aircraft or engines or removed therefrom but belonging or appurtenant
to such aircraft or engines; and
o all Aircraft Documents,
as further described and defined in that certain Aircraft Sale & Purchase
Agreement dated as of November 14, 2005 among JetGlobal, LLC, as Seller and
Aviation Finance Group, LLC, as Purchaser (the "Aircraft Sale and Purchase
Agreement"). Capitalized words used herein shall have the meaning given to such
words in the Aircraft Sale and Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, Seller does hereby sell, grant, convey,
transfer and deliver and set over unto Aviation Finance Group, LLC, a Delaware
limited liability company ("Purchaser"), "AS IS, WHERE IS", all of Seller's
right, title and interest in and to the Aircraft, subject to Permitted Liens.
Seller hereby warrants to Purchaser that there is hereby conveyed to Purchaser
good and marketable title to the Aircraft, Engines, parts, components, equipment
installed thereon or appurtenant thereto, free and clear of all liens, claims,
charges and encumbrances other than Permitted Liens, including any mortgage,
pledge, lien, charge, assignment, hypothecation, security interest, lease, title
retention, preferential right or trust agreement, pooling, exchange, overhaul or
repair agreement, or any other interest affecting title, and that Seller will
warrant and defend such title against all claims and demands whatsoever.
This Aircraft Bill of Sale is made and delivered pursuant to the provisions of
the Aircraft Sale and Purchase Agreement and is governed by the laws of the
State of California.
Schedule 5 - 1
IN WITNESS WHEREOF, Seller has caused this instrument to be executed by its duly
authorized representative on ________________, 2005.
SELLER:
JETGLOBAL, LLC
By:
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Schedule 5 - 2
SCHEDULE 6
FORM OF ACCEPTANCE CERTIFICATE
One (1) B737-200 Aircraft
manufacturer's serial number ___________
Two Pratt & Whitney JT8D-15A Engines
MSN _______ and _______
(as more particularly defined in the Aircraft Sale and Purchase
Agreement described below, the "Aircraft")
Aviation Finance Group, LLC (the "Purchaser") hereby certifies that pursuant to
the Aircraft Sale & Purchase Agreement dated as of November 14, 2005 between
Purchaser and JetGlobal, LLC, as Purchaser (the "Aircraft Sale and Purchase
Agreement"):
(a) Purchaser has inspected the Aircraft, and the Aircraft conforms with the
description and is in the condition and equipped as required by the
Aircraft Sale and Purchase Agreement;
(b) Purchaser has accepted delivery of the Aircraft and is fully satisfied with
the Aircraft and such acceptance; and
(c) Purchaser has received and inspected all of the Aircraft Documents (as
defined in the Aircraft Sale and Purchase Agreement) and found them to be
complete and satisfactory.
Date:
-----------------------------
Duly executed for the Purchaser by:
AVIATION FINANCE GROUP, LLC
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Schedule 6 - 1
Schedule 7
Aircraft Specification Summary -
Exhibit 7 The following 737-200 Aircraft shall be
delivered in fully equipped, serviceable And operating condition,
including with two (2) each JT8D-15A engines, also fully equipped,
serviceable and operating condition, as generally described below:
REG/MSN S/N Airframe H/C Engine# 6431 Cycles Rem Hours Rem Hours Rem
- -----------------------------------------------------------------------------------------------------
N307 DL 23079 E59000 709163 5/09 3104 1147 7582
E44000 709143 9/09 5210 6613 7726
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N312DL 23084 59732 709118 4/07 3165 1647 1658
44937 709130 8/07 2603 2845 3016
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N313DL 23084 59877 709123 4/07 2672 2484 2500
44937 709160 4/11 4099 11870 11871
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N315DL 23087 58963 709120 11/07 4749 7326 1430
44522 709165 07/07 6239 10089 10345
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N316DL 23088 57744 709125 06/08 2951 3344 3624
43228 709195 02/08 3133 9392 9690
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N317DL 23089 E59000 709132 05/08 4819 5593 6732
E44000 709164 06/08 4361 4640 5759
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N318DL 23090 E59000 709166 7/11 6528 7609 8795
E44000 709183 9/08 4686 8197 3758
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N320DL 23092 59767 709115 9/11 4914 4772 5700
43611 709159 6/08 3329 5148 6000
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N312DL 23093 E59000 709152 10/08 2938 4408 5552
E44000 709184 11/08 6686 6301 2991
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N322DL 23094 E59000 709129 09/09 2855 6369 1912
E44000 709133 6/11 4794 11008 1983
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N327DL 23099 E59000 709186 12/07 1210 1698 2900
E44000 717159 12/09 2043 1820 2905
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
N381DL 23608 E59000 709150 6/11 4294 4621 3152
E44000 709127 12/06 4990 4065 2068
- -----------------------------------------------------------------------------------------------------
Schedule 7 - 1
SCHEDULE 8
Standard Documents List
- --------------------------------------------------------------------------------
Description
- --------------------------------------------------------------------------------
CERTIFICATES
- --------------------------------------------------------------------------------
Certificates of Airworthiness HARD COPY
- --------------------------------------------------------------------------------
Current Aircraft Registration Certificate HARD COPY
- --------------------------------------------------------------------------------
Noise Limitation Certificate (AFM pages) CD ROM
- --------------------------------------------------------------------------------
Radio Station License HARD COPY
- --------------------------------------------------------------------------------
Certificate of Sanitary
Construction HARD COPY
- --------------------------------------------------------------------------------
AIRCRAFT STATUS SUMMARIES
- --------------------------------------------------------------------------------
Each status summary shall be certified by operator's Quality Control or Quality
Assurance as being true and accurate Representation of the aircraft status or
transfer. HARD COPY
- --------------------------------------------------------------------------------
Certified Status of Time in Service (Hours & Cycle) and maintenance
status. HARD COPY
- --------------------------------------------------------------------------------
Certified status of Airworthiness Directives including method of compliance.
HARD COPY
- --------------------------------------------------------------------------------
Certified status of Service Bulletin's incorporated. HARD COPY
- --------------------------------------------------------------------------------
Certified status of CPCP listing Manufacture card #, operator internal reference
#, last accomplished date and next due date. Hard copy sign off documents
required. HARD COPY
- --------------------------------------------------------------------------------
Summary of Operator Modifications incorporated including evidence
of FAA approval if required. HARD COPY
- --------------------------------------------------------------------------------
Summary of Major Repairs/ Alterations/ STC's Incorporated and
supporting documentation/ approvals HARD COPY
- --------------------------------------------------------------------------------
AMOC's issued for Airworthiness Directives HARD COPY
- --------------------------------------------------------------------------------
Status of Life Limited Components ( Airframe) HARD COPY
- --------------------------------------------------------------------------------
Last A, B, C, D Checks/ Inspection History and Current Status CD ROM
- --------------------------------------------------------------------------------
Status of Time-Controlled Components HARD COPY
- --------------------------------------------------------------------------------
Status of serialized On-Condition/ Condition Monitor Components HARD COPY
- --------------------------------------------------------------------------------
List of Deferred Maintenance Items (see log book) HARD COPY
- --------------------------------------------------------------------------------
Status of any Out-of-Phase Checks, Special Inspection Requirements,
Time Limited Repairs, Etc. (ACTL Report) HARD COPY
- --------------------------------------------------------------------------------
Page 1 of 4
SCHEDULE 8
STANDARD DOCUMENT LIST
AIRCRAFT MAINTENANCE RECORDS
Aircraft Flight Log Sheets (minimum of last 12 months) CD-ROM
Last "A", "B", "C", and D Checks (or equivalents) (In the event that a check is
performed in phases, all phases necessary to constitute a complete block check
are required. In thee event that check content varies by multiples of the check,
all multiples necessary.) CD-ROM
FAA Airworthiness Directive, Service Bulletin and Modification compliance
documents including engineering orders, drawings, task cards, etc., as necessary
to establish method of compliance, quality control acceptance, and approval
authority.
HARD COPY
Documentation of Major Repairs accomplished in accordance with manufacturers
Structural Repair Manual limits, including copies of Engineering Orders and
accomplishment work cards. HARD COPY
Documentation of Major Repairs not covered by the Structural Repair Manual, and
Alterations in accordance with the Manufacturer recommended data (FAA 8110-3),
including engineering orders and drawings as provided. HARD COPY
Copies of Supplemental Type Certificates, Master Change Notices, etc. relating
to any modifications and alterations to the aircraft since manufacture which is
necessary to define work done and FAA certification. Compliance Document
Reference Data and all drawings as provided. HARD COPY
Last Aircraft weighing report (average by Delta) HARD COPY
Last Flight Report (see log book) HARD COPY
Current Compass Deviation Card HARD COPY
Copy Maintenance Program Specifications Time Limit Manual, Maintenance
Inspection Program, Part Acceptance and Serviceability Procedure. CD-ROM
Interior configuration drawings (L.O.P.A.-Layout of
passenger accommodation) HARD COPY
List of Emergency Equipment and Location Drawing HARD COPY
Cabin Material Burn Test documents: Cabin interiors as follows* Certification of
compliance with the fire blocking requirements as outlined in FAR part 25
including: kSeat Cushions*, Back Rest Cushions*, Dress Covers*, Flight
Attendants Seat Cushions & dress Covers, Floor & Coverings if refurbished.
DAL Generic Certs CD-ROM
Copy of SSID Program (DTR Forms) (see DAL Maintenance Program CD) CD-ROM
Copy of Operator "A" Check Card CD-ROM
Copy of Operator "Daily" Check Card CD-ROM
Copy of Operator "B" Check Card CD-ROM
Page 2 of 4
SCHEDULE 8
STANDARD DOCUMENT LIST
AIRCRAFT HISTORY RECORDS
Accident and incident Reports for Airframe Hard Copy
Listing of historical Aircraft Flight Times/Cycles Hard Copy
Aircraft Servicing Fluid Requirements: MLG, ACM,
Hydraulic Systems, Flap Transmissions Hard Copy
ENGINE RECORDS (for each engine)
Each status summary shall be certified by operator's Quality Control or Quality
Assurance as being a true and accurate representation of the aircraft status at
transfer. Hard Copy
Certified Statement as to following:
Time and Cycles since new Hard Copy
Time and Cycles since heavy maintenance on each
engine module (Hot/Cold Sections) Hard Copy
Flying hours and cycles during airline's operation
(Engine On/Off Log) Hard Copy
Last Certified Test Cell Run CD-ROM
Certified Airworthiness Directive Applicability and
Compliance Report Hard Copy
Certified Current Manufacturer Modification and Service
Bulletin Status Hard Copy
Certified List of Operator Modifications Incorporated, if any Hard Copy
Certified List of Major Repairs and Alterations, if any Hard Copy
Certified List and Current Status of Life Limited Components and Group "A" Life
Limited Parts Hard Copy
Accessory Status QEC List and Serial Numbers (see Build Records) CD-ROM
FAA Forms 337 (or equivalent) for last Engine Shop Visit,
if applicable Hard Copy
Documents demonstrating installation and full traceability to new for each life
limited part including individual FAA authorization release certificates (8130,
JAA Form One, Commercial Transfer Ticket, or Manufacturer's Major Rotating Part
Certification) as applicable. Hard Copy
Last Engine Condition Monitoring Report Hard Copy
Most recent engine borescope, if any Media-TBD
Most recent on-wing ground performance run, if any Hard Copy
Engine & Accessories Oil used (i.e. brand of oil used) Hard Copy
Accident and Incident Reports for Engine Hard Copy
Page 3 of 4
SCHEDULE 8
STANDARD DOCUMENT LIST
APU RECORDS
Each status summary shall be certified by operator's Quality Control or Quality
Assurance as being true and accurate representation of the aircraft status at
transfer. Hard Copy
APU Hours since hot section inspection Hard Copy
Operator's Method for APU Time Accrual Hard Copy
Certified Airworthiness Directive Applicability and
Compliance Report Hard Copy
Current Manufacturer Service Bulletin Status Hard Copy
List of Operator Modification incorporated, if any Hard Copy
FAA Form 337 (or equivalent) for last shop visit, if applicable Hard Copy
Reason for last APU removal, removal paperwork and date of APU removal CD-ROM
Last certified test cell run, if any CD-ROM
COMPONENT RECORDS/LANDING GEAR
Certified Time Controlled Component Status including details of installation
date, TT, TC, TSO, CSO, date of last overhaul and certified records of last
overhaul. Hard Copy
Certified On-Condition/Condition Monitored Components status including details
of installation date, TT, TC Hard Copy
Last overhaul package and certification for each landing gear. CD-ROM
ORIGINAL DELIVERY DOCUMENTS PROVIDED AT MANUFACTURE
Manufacture AD Report CD-ROM
Aircraft Readiness Log, if provided Hard Copy/CD-ROM
LIST OF MANUALS
Airplane Flight Manual (all supplements FAA approved) CD-ROM
Weight and Balance Manual Hard Copy
Maintenance Manual (Airframe) CD-ROM
Wiring Diagram Manual CD-ROM
Illustrated Parts Catalog (Airframe) CD-ROM
Structural Repair Manual CD-ROM
Engine Maintenance Manual CD-ROM
Engine Illustrated Parts Manual CD-ROM
Page 4 of 4
SCHEDULE 9
INSURANCE REQUIREMENTS
1. Comprehensive General Liability Insurance including premises and operations
liability, products and completed operations liability, property damage,
contractual and personal injury liability (collectively "Liability Insurance").
At all times when the Aircraft is being flown, the Liability Insurance shall
also include War Risk and Allied Perils, Cargo, Passenger Baggage and Mail
Liability. The Liability Insurance shall be endorsed to include the following
provisions:
(a) Additional Insured. The Additional Insureds shall be additional
insureds.
(b) Minimum Limits of Liability. A combined single limit of not less than
(or a combination of primary and excess coverage, with no limitation
as to any one claim, except with respect to any applicable aggregate
limitation for products and completed operations liability insurance
or aggregated sublimits with respect to non-passenger personal injury
liability coverage as is customarily available from the worldwide
aviation insurance marketplace) of $300,000,000.00 U.S. Dollars on any
one occurrence, covering bodily injury, property damage and personal
injury. Notwithstanding the foregoing, to the extent available, War
Risk and Allied Perils Liability Coverage shall be provided at a
sub-limit of not less than $50,000,000.00 U.S. Dollars in the annual
aggregate for third-party, bodily injury and property damage (as part
of and not in addition to the combined single limit specified above).
(c) Primary Insurance. Such insurance shall be primary insurance without
the right of contribution from any other insurance available to any
Additional Insured.
2. With respect to all Liability Insurances referred to in Section 1 above:
(a) Breach Of Warranty. Such policies of insurance shall be endorsed to
include a breach of warranty provision for the benefit of the
Additional Insureds.
(b) Waiver Of Subrogation. Such policies shall be endorsed to waive such
insurer's rights of subrogation, set-off, counterclaim or any other
deduction, whether by attachment or otherwise against any Additional
Insured.
(c) Notice. All insurance policies shall contain a thirty (30) day (seven
(7) days or such lesser period as is customarily available in the case
of any war risk and allied perils insurance) notice to Additional
Insureds in writing of cancellation or adverse material change in
coverage.
Schedule 9
SCHEDULE 9-2
SCHEDULE 9-2
AIRCRAFT ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT is made and entered as of November 14, 2005 by and among Aviation
Finance Group, LLC, a Delaware limited liability company, with its principal
office at 18604 Phantom Street, Victorville, California ("AFG"); JetGlobal, LLC,
a company organized in the State of Delaware, United States of America, with its
address at C/O BCI Aircraft Leasing, Inc., 330 North Wabash Avenue, Suite 2802
("JetGlobal"), Chicago, Illinois 60611; and BCI Aircraft Leasing, Inc., an
Illinois corporation, with its principal office at 330 North Wabash Ave., Suite
2802, Chicago, Illinois ("BCI").
RECITALS
WHEREAS, AFT and JetGlobal have entered into a contract for the sale of 12
737-200 aircraft from BCI to AFG dated November 14, 2005 (the "Sale Contract");
WHEREAS, BCI would like to purchase AFG's rights to acquire the following
aircraft from that Sale Contract: the aircraft with manufacturer's serial number
23079, registration number N307DL, including the aircraft engines bearing
manufacturer's serial numbers 709163 and 709143 ("Aircraft N307DL"); and
WHEREAS, AFG is willing to assign its rights to purchase Aircraft N307DL under
the Sale Contract pursuant to the following terms and agreement, JetGlobal is
willing to permit such assignment and permit BCI to purchase Aircraft N307DL
directly from JetGlobal under the Sale Contract, and JetGlobal is willing to
release AFG from all its obligations under the Sale Contract in respect of
Aircraft N307DL.
Schedule 9 - 2
AGREEMENT
NOW THEREFORE, AFG, BCI and JetGlobal agree as follows:
1. ASSIGNMENT: In consideration of payment of the purchase price to be
paid by BCI to AFG pursuant to Clause 4, below, AFG hereby assigns to
BCI, without representation, warranty or recourse of any kind, AFG's
rights to purchase Aircraft N307DL pursuant to the Sale Contract,
effective immediately upon the signature of this agreement, AFG hereby
transfers, assigns and delegates to BCI all of AFG's obligations,
duties and liabilities under the Sale Contract, to the extent the same
relate to Aircraft N307DL.
2. ASSUMPTION: BCI hereby accept the assignment, transfer and delegation
referred to in Clause 1, above, and assumes all of AFG's obligations
and duties under the Sale Contract with respect to Aircraft N307DL and
agrees to perform all such obligations and duties and satisfy all such
liabilities effective immediately upon the signature of this
agreement.
3. ACCEPTANCE BY JETGLOBAL: By its execution below, JetGlobal hereby
releases AFG from any obligation it may have under the Sale Contract
with respect to Aircraft N307DL and agrees to look solely to BCI for
performance of AFG's obligations with respect thereto.
4. PURCHASE PRICE: BCI agrees to pay to AFG a purchase price of
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THESECURITIES
AND EXCHANGE COMMISSION] for its rights under the Sale Contract with
respect to Aircraft N307DL, which payment will be due at the earlier
of December 31, 2005 or the date upon which BCI closes the sale to a
third party of Aircraft N307DL.
5. SALE CONTRACT AMENDMENT: Pursuant to this agreement, the Sale Contract
shall be amended as follows:
Schedule 9 -3
(a) AFG's purchase right for Aircraft N307DL shall be exercisable by
BCI and AFG will be released from its obligations with respect
thereto.
(b) All other terms of the Sale Contract shall remain the same and
are hereby affirmed, as modified hereby.
6. TRANSACTION FEES AND COSTS: The parties agree that AFG shall have no
fees or costs resulting from the transaction greed to herein,
including, but not limited to, finders fees, taxes (other than on AFG
income), sales commissions or transactional costs.
7. GOVERNING LAW: This agreement shall be governed and construed pursuant
to the laws of the State of California and the parties consent to the
jurisdiction of the courts of that state.
8. ATTORNEYS FEES AND COSTS: In any legal proceeding to enforce or
interpret the terms of this agreement, the prevailing party shall be
entitled to reasonable attorney fees and costs, in additional to any
other relief to which it may be entitled.
9. INTEGRATED AGREEMENT: This agreement and the Sale Contract constitute
the full and complete understanding of the parties with regard to the
matters set forth herein, and supersedes any other agreement,
understanding or representation, whether written or verbal, between
the parties or their representatives.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed by
their duly authorized officers as of the day and year first written above.
Aviation Finance Group, LLC BCI Aircraft Leasing, Inc.
By: /s/ Craig Garrick By: /s/ Brian Hollnagel
----------------- ------------------
Name: Craig Garrick Name: Brian Hollnagel
------------- ---------------
Title: President Title: President
--------- ---------
JetGlobal, LLC
By: /s/ Brian Hollnagel
-------------------
Name: Brian N. Hollnagel
------------------
Title: Manager
--------
Schedule 9 - 2