EXHIBIT 99.1
AIRCRAFT SALE & PURCHASE AGREEMENT
Dated as of November 14, 2005
JETGLOBAL, LLC
as Seller
and
AVIATION FINANCE GROUP, LLC
as Purchaser
-----------------------------------------------------------
relating to twelve (12) Boeing 737-200 Aircraft
manufacturer's serial number - As specified herein
engines manufacturer's serial numbers - As specified herein
-----------------------------------------------------------
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
1
SCHEDULE 6 FORM OF ACCEPTANCE CERTIFICATE..................................1
SCHEDULE 7 AIRCRAFT SPECIFICATION SUMMARY..................................1
SCHEDULE 8 STANDARD DOCUMENT LIST..........................................1
SCHEDULE 9 INSURANCE REQUIREMENTS..........................................1
2
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
3
(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.
4
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.
5
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 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.
6
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
7
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 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.
8
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).
9
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.
10
(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.
(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:
11
(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 is 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
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.
12
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 MADE, AND SELLER HEREBY
DISCLAIMS, (I) ANY REPRESENTATION, WARRANTY OR COVENANT (EXCEPT THE
REPRESENTATIONS, WARRANTIES AND COVENANTS SET FORTH IN THIS AGREEMENT AND
13
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 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;
14
(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 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
15
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 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
19
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
SCHEDULE 1
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
Schedule 7 - 1
SCHEDULE 8
STANDARD DOCUMENT LIST
Schedule 8 - 1
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 - 1
SCHEDULE 9-2
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION]
Schedule 9 - 2