EXHIBIT 2.1
AIRCRAFT SALES AGREEMENT
This Aircraft Sales Agreement (as amended, modified and/or supplemented
from time to time, this "Agreement"), dated as of August 12, 2003, is among
Wachovia Bank, National Association, not in its individual capacity, but solely
in its capacity as trustee of the Trust hereinafter referred to (in such
capacity as Trustee, the "Seller"), with an office at 920 King Street, Suite
102, Wilmington, Delaware 19801, Airlease Ltd., a California limited
partnership, with an office at 555 California Street, 4th Floor, San Francisco,
CA 94104 (the "Owner Participant"), and OLSF, L.L.C., a Delaware limited
liability company with offices at 13000 NW 45th Avenue, Opa Locka, Florida 33054
(the "Buyer").
RECITALS
A. Seller is a successor in interest to Meridian Trust Company, as
trustee of the trust (the "Trust") created pursuant to that certain Trust
Agreement, dated July 10, 1986 (as amended, supplemented and/or otherwise
modified to the date hereof, the "Trust Agreement"), originally entered into
among Airlease Ltd, as owner participant, Meridian Trust Company, as trustee,
and Airlease Management Services, Inc., as agent.
B. Seller desires to sell all of its right, title and interest (held by
Seller on behalf of the Trust) in and to three (3) McDonnell Douglas Model
DC-9-Series 80 aircraft, together with each aircraft's installed engines and
each aircraft's related manuals and records, all as more particularly described
herein.
D. Buyer desires to purchase each Aircraft (as defined below) and the
related Engines (as defined below) and Data (as defined below).
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties agree as follows:
1. SUBJECT MATTER OF SALE.
(A) (i) One (1) McDonnell Douglas Model DC-9-Series 80
aircraft, consisting of an airframe, including any and all avionics, appliances,
parts, furnishings, instruments, accessories and other equipment installed
therein or thereon, and two (2) Pratt & Whitney Model JTD8-217 Turbofan engines
(the "Aircraft One Engines"), all of which constitute "Aircraft One" which is
more fully described on Exhibit A attached hereto and incorporated herein by
this reference; (ii) One (1) McDonnell Douglas Model DC-9-Series 80 aircraft,
consisting of an airframe, including any and all avionics, appliances, parts,
furnishings, instruments, accessories and other equipment installed therein or
thereon, and two (2) Pratt & Whitney Model JTD8-217 Turbofan engines (the
"Aircraft Two Engines"), all of which constitute "Aircraft Two" which is more
fully described on Exhibit A; and (iii) One (1) McDonnell Douglas Model
DC-9-Series 80 aircraft, consisting of an airframe, including any and all
avionics, appliances, parts, furnishings, instruments, accessories and other
equipment installed therein or thereon, and two (2) Pratt & Whitney Model
JTD8-217 Turbofan engines (the "Aircraft Three Engines"), all of which
constitute "Aircraft Three" which is more fully described on Exhibit A (Aircraft
One, Aircraft Two and Aircraft Three are sometimes hereinafter collectively
referred to as the "Subject Aircraft" and individually referred to as an
"Aircraft"; and Aircraft One Engines, Aircraft Two Engines, and Aircraft Three
Engines are sometimes hereinafter collectively referred to as the "Engines" and
individually as an "Engine"); and
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(B) All flight, engineering and maintenance manuals, drawings,
documents and other data pertaining to an Aircraft (the "Manuals") and all
operational and maintenance records, if any, pertaining to an Aircraft (the
"Records") in the possession or control of Seller. The Manuals and the Records
for an Aircraft are sometimes referred to herein collectively as the "Data".
2. DEPOSIT; PRICE AND PAYMENT; ADJUSTMENT
(A) As a security deposit with respect to Buyer's obligations
to purchase the Subject Aircraft, Buyer has previously paid to Seller a deposit
in an amount equal to ONE HUNDRED THOUSAND U.S. DOLLARS (US $100,000.00) (the
"Deposit"). The Deposit shall be held initially to secure the timely purchase of
Aircraft One (and the related Data) in accordance with the provisions hereof.
Following the First Closing (as hereinafter defined), the Deposit shall then be
held to secure the timely purchase of Aircraft Two (and the related Data) in
accordance with the provisions hereof. Following the Second Closing (as
hereinafter defined), the Deposit shall be held to secure the timely purchase of
Aircraft Three (and the related Data) in accordance with the provisions hereof.
Under no circumstances shall the deposit be credited to the purchase of Aircraft
One (and the related Data) and/or Aircraft Two (and the related Data); provided
that, in the event that Aircraft One (and the related Data) and Aircraft Two
(and the related Data) have been delivered by Seller and purchased by Buyer in
accordance with the provisions hereof, then the Deposit shall be credited toward
the purchase price of Aircraft Three (and the related Data). Subject to clause
(ii) of this Section 2(A), if Final Acceptance (as hereinafter defined) has
occurred with respect to the Subject Aircraft, the Deposit shall automatically
and without further action become the sole property of Seller in the event that
Buyer shall fail to purchase Aircraft One (and the related Data), Aircraft Two
(and the related Data) and/or Aircraft Three (and the related Data) in
accordance with the provisions hereof. The Deposit shall only be refundable to
Buyer in the following circumstances:
(i) prior to the First Closing, Seller and/or Owner
Participant fails to obtain all necessary approvals regarding the
transactions contemplated by this Agreement under the Trust Agreement
and the agreements, documents and instruments related thereto
(collectively, the "Trust Documents") and/or under their respective
organizational documents; or
(ii) all of the Aircraft remaining to be purchased
hereunder are lost or destroyed as specified in Section 11(B) hereof;
or
(iii) Seller fails to satisfy the conditions set
forth in Section 4(B)(v) hereof with respect to the last Aircraft to be
delivered hereunder.
(B) The sales price (the "Sales Price") for each of the
Subject Aircraft is the sum of: (i) ONE MILLION TWO HUNDRED THOUSAND U.S.
DOLLARS (US $1,200,000.00) plus (ii) the amount of any and all applicable taxes.
The Sales Price for each of the Subject Aircraft shall be payable at the related
Closing and shall be paid by bank wire transfer of immediately available federal
funds according to the following wire transfer instructions:
Bank of America, N.A.
ABA # 121000358
Account # 12331-34432
Account of Airlease Ltd.
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3. INSPECTION OF THE SUBJECT AIRCRAFT.
(A) Buyer's obligation to purchase each Aircraft hereunder is
subject to Buyer having inspected such Aircraft and the related Data
("Inspection") at its own expense and finding the same satisfactory in its own
discretion (which satisfaction with respect to each Aircraft and the related
Data shall be referred to as "Final Acceptance"). Buyer acknowledges and agrees
that: (i) it has completed Inspection of each Aircraft and the related Data; and
(ii) it hereby gives Final Acceptance regarding each Aircraft and the related
Data.
(B) Each Aircraft will be in the following condition at the
time of Inspection and Delivery to the Buyer:
(i) Each Aircraft shall have installed the full
complement of its related Engines and all other loose equipment as
identified at the Inspection;
(ii) Each Aircraft's Engine, APU and landing gear
shall have full and complete back-to-birth historical records;
(iii) Each Aircraft's Engine shall have passed a
comprehensive borescope inspection performed by Buyer or Buyer's
designated representative(s) at Buyer's sole cost and expense; and
(iv) Each Aircraft shall be registered with the FAA
and shall have a Certificate of Airworthiness (but need not be in
airworthy condition).
4. CLOSING AND DELIVERY OF EACH AIRCRAFT.
(A) Closing and Delivery for each of the Subject Aircraft
shall be as follows:
(i) Closing and Delivery for Aircraft One and
the related Data shall be on the date hereof
(the "First Closing");
(ii) Closing and Delivery for Aircraft Two (and
the related Data) shall be on the date which
is one hundred twenty (120) days following
the date of the First Closing (or, if such
date is not a business day, on the next
succeeding business day) or on such other
date as shall be mutually agreed to between
Seller and Buyer (the "Second Closing"); and
(iii) Closing and Delivery for Aircraft Three (and
the related Data) shall be on the date which
is one hundred twenty (120) days following
the date of the Second Closing (or, if such
date is not a business day, on the next
succeeding business day) or on such other
date as shall be mutually agreed to between
Seller and Buyer (the "Third Closing"; the
First Closing, the Second Closing and the
Third Closing are sometimes hereinafter
collectively referred to as, the "Closings"
and, individually as a "Closing");
PROVIDED that Buyer shall have the option, in its sole discretion, of purchasing
any of the Subject Aircraft (and the related Data) prior to such Aircraft's
scheduled Closing upon five (5) days prior written notice to Seller; PROVIDED
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FURTHER that in no event may (1) Aircraft Two and Aircraft Three be purchased
prior to Aircraft One and/or (2) Aircraft Three be purchased prior to Aircraft
Two.
(B) As conditions precedent to each of the Closings, all of
the following shall have occurred prior to each respective Closing:
(i) [INTENTIONALLY OMITTED];
(ii) (a) Seller shall have received, on or before
the First Closing, an opinion of Buyer's
counsel regarding those matters of corporate
authority and this Agreement which are usual
and customary in similar transactions, in
form and substance acceptable to Seller and
Owner Participant; and (b) Buyer shall have
received a similar opinion from counsel to
Owner Participant;
(iii) Seller shall have received, on or before the
First Closing, a guaranty from GA Telesis
Turbine Technologies, L.L.C., a Florida
limited liability company ("Guarantor"),
guarantying Buyer's obligations under this
Agreement and any other agreements,
documents and instruments related thereto;
(iv) No later than the First Closing, Buyer,
Seller and Owner Participant shall have
obtained all required approvals relating to
the transactions contemplated hereby under
their respective organizational documents
and under the Trust Documents (as
applicable); and
(v) (1) There shall have occurred no material
adverse change in the applicable Aircraft
since the Final Inspection; (2) the
applicable Aircraft shall be free and clear
of any liens, charges and encumbrances; and
(3) Seller shall have provided Buyer a
statement of non-incident from the last FAR
Part 121 operator and any subsequent storage
provider concerning the applicable Aircraft.
(C) At each Closing, Buyer shall take delivery of the
applicable Aircraft (and the related Data) at Lake City, Florida or at such
other place as Seller and Buyer may agree and all of the conditions set forth in
Section 4(B)(v) shall have been satisfied (with respect to each of the Subject
Aircraft, a "Delivery").
(D) Prior to each Closing, Seller shall place in escrow with
Crowe & Dunlevy, Oklahoma City, OK an FAA Bill of Sale Form 8050-2 in favor of
Buyer for the applicable Aircraft, and Buyer shall place in escrow an FAA Form
8050-1, Application for Aircraft Registration, or a letter requesting
deregistration, as the case may be, for the applicable Aircraft in the name of
Buyer.
(E) Each Closing shall be held by conference call. At each
Closing, (i) Buyer shall execute and deliver to Seller (a) an Acknowledgement of
Receipt and Acceptance of Aircraft for the applicable Aircraft in substantially
the form of Exhibit B attached hereto and incorporated herein by this reference,
and (b) an Officer's Certificate of Representations and Warranties in
substantially the form of Exhibit C attached hereto and incorporated herein by
this reference, (ii) Owner Participant shall execute and deliver an Officer's
Certificate of Representations and Warranties in substantially the form of
Exhibit D attached hereto and incorporated herein by this reference, (iii)
Seller shall execute and deliver an Officer's Certificate of Representations and
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Warranties in substantially the form of Exhibit E attached hereto and
incorporated herein by this reference, (iv) Guarantor shall execute and deliver
an Officer's Certificate of Representations and Warranties in substantially the
form of Exhibit F attached hereto and incorporated herein by this reference,
(vi) Buyer shall wire transfer the Sales Price for the applicable Aircraft and
the related Data in accordance with Section 2(B) hereof or otherwise as Seller
shall instruct in writing, and (vii) Seller shall cause Crowe & Dunlevy (or such
other firm as is reasonably acceptable to Seller and Buyer) to issue a
confirmation to Buyer regarding the lien search with respect to the applicable
Subject Aircraft.
(F) Upon confirmation of the receipt of such funds for a
Closing, Seller shall deliver to Buyer, for the applicable Aircraft, a Long Form
Bill of Sale in substantially the form of Exhibit G attached hereto and
incorporated herein by this reference, and shall instruct Crowe & Dunlevy to
record the FAA Bill of Sale Form 8050-2 for the applicable Aircraft with the
Federal Aviation Administration ("FAA") along with Buyer's Application for
Aircraft Registration or a letter requesting deregistration, as the case may be.
(G) Upon Closing and Delivery of an Aircraft, all risk of
loss, damage or destruction of such Aircraft shall pass to Buyer.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
(A) Seller hereby warrants to Buyer that, at the time of
Delivery of each Aircraft and its related Data, such Aircraft shall be subject
to no mortgage, pledge, lien, charge or other encumbrance arising by, through or
under Seller.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, EACH AIRCRAFT
AND THE RELATED DATA (INCLUDING, BUT NOT LIMITED TO, SUCH AIRCRAFT'S MAINTENANCE
RECORDS) ARE BEING SOLD OR FURNISHED HEREUNDER IN "AS IS, WHERE IS" CONDITION,
AND SELLER MAKES NO WARRANTIES, GUARANTIES, OR REPRESENTATIONS OF ANY KIND,
EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO EACH AIRCRAFT
OR ITS RELATED DATA, INCLUDING, BUT NOT LIMITED TO, CONDITION OR AIRWORTHINESS
OF EACH AIRCRAFT AND TITLE THERETO, AND BUYER HEREBY WAIVES ALL REMEDIES,
WARRANTIES OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH
RESPECT TO EACH AIRCRAFT OR ITS RELATED DATA SOLD OR FURNISHED UNDER THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, (1) ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, (2) ANY IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, (3) ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING
FROM SELLER'S NEGLIGENCE, ACTUAL OR IMPUTED, (4) ANY PATENT INFRINGEMENT, (5)
ANY LATENT DEFECT, AND (6) ANY OBLIGATION, LIABILITY, CLAIM OR REMEDY FOR LOSS
OF OR DAMAGE TO ANY AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO
EACH AIRCRAFT, FOR ANY LIABILITY OF BUYER TO ANY THIRD PARTY, OR FOR ANY OTHER
DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
6. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller and Owner Participant
as follows:
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(A) Buyer is a limited liability company duly organized,
existing and in good standing under the laws of Delaware and is duly qualified
to do business in all jurisdictions in which it is required to be so qualified.
(B) Buyer has the full power, authority and legal right to
execute, deliver and perform the terms of this Agreement. This Agreement has
been duly authorized by all necessary limited liability company action of Buyer
and constitutes the valid and binding obligation of Buyer. There is no law and
no charter, operating agreement, or preference membership provision pertaining
to Buyer, and no provision in any existing mortgage, indenture, contract or
agreement which will be contravened by the execution, delivery or performance by
Buyer of the terms of this Agreement.
(C) No consent of the members, or any trustee or holder of
indebtedness, of Buyer or of a party to any agreement binding on Buyer is or
will be required as a condition to the validity of this Agreement.
(D) There is no litigation, tax claim, proceeding or dispute,
including, but not limited to, any proceeding, voluntary or involuntary, under
any bankruptcy, reorganization, insolvency or moratorium law, or any other law
for the relief of debtors, which is pending, or to Buyer's knowledge,
threatened, contemplated, or reasonably foreseeable, against Buyer or affecting
Buyer or its property, the determination of which might materially and adversely
affect its financial condition or operations or materially impair its ability to
perform its obligations under this Agreement.
(E) Buyer shall duly obtain any and all government consents
and approvals and give all notices required by any government entity in
connection with the execution, delivery and performance of this Agreement by
Buyer.
(F) Upon delivery of the FAA Bill of Sale Form 8050-2 for an
Aircraft in favor of Buyer, Buyer will be entitled to cause the registration of
such Aircraft in Buyer's name at the FAA.
7. REPRESENTATIONS AND WARRANTIES OF OWNER PARTICIPANT; REPRESENTATIONS
AND WARRANTIES OF SELLER.
(A) Owner Participant represents and warrants to Buyer and
Seller as follows:
(i) Owner Participant is a limited partnership duly
organized and validly existing and in good standing under the laws of the State
of California. As of the date of this Agreement, the Owner Participant is the
sole "Owner Participant" under the Trust.
(ii) Owner Participant has the power, authority and
legal right to execute, deliver and perform under the terms of this Agreement
and the execution, delivery and performance of this Agreement have been duly
authorized by Owner Participant by all necessary partnership action.
(iii) No consent of the partners, or any trustee or
holder of indebtedness, of Owner Participant or of a party to any agreement
binding on Owner Participant is or will be required as a condition to the
validity of this Agreement.
(iv) There is no litigation, tax claim, proceeding or
dispute, including, but not limited to, any proceeding, voluntary or
involuntary, under any bankruptcy, reorganization, insolvency or moratorium law,
or any other law for the relief of debtors, which is pending, or to Owner
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Participant's knowledge, threatened, contemplated, or reasonably foreseeable,
against Owner Participant or affecting Owner Participant or its property, the
determination of which might materially and adversely affect its operations or
materially impair its ability to perform its obligations under this Agreement.
(v) Owner Participant shall duly obtain any and all
government consents and approvals and give all notices required by any
government entity in connection with the execution, delivery and performance of
this Agreement by Owner Participant.
(B) Seller represents and warrants to Buyer and Owner
Participant as follows:
(i) Seller is a banking association duly organized
and validly existing under the laws of its jurisdiction of organization.
(ii) Seller has the power, authority and legal right
to execute, deliver and perform under the terms of this Agreement and the
execution, delivery and performance of this Agreement have been duly authorized
by Seller by all necessary corporate or other action.
(iii) No consent of any trustee or holder of
indebtedness of Seller or of a party to any agreement binding on Seller is or
will be required as a condition to the validity of this Agreement.
(iv) There is no litigation, tax claim, proceeding or
dispute, including, but not limited to, any proceeding, voluntary or
involuntary, under any bankruptcy, reorganization, insolvency or moratorium law,
or any other law for the relief of debtors, which is pending, or to Seller's
knowledge, threatened, contemplated, or reasonably foreseeable, against Seller
or affecting Seller or its property, the determination of which might materially
and adversely affect its operations or materially impair its ability to perform
its obligations under this Agreement.
(v) Seller shall duly obtain any and all government
consents and approvals and give all notices required by any government entity in
connection with the execution, delivery and performance of this Agreement by
Seller.
8. TRUSTEE'S AUTHORITY TO EXECUTE AND PERFORM.
The Owner Participant hereby authorizes and directs Seller to
(A) execute and deliver this Agreement and all other agreements, documents,
instruments and certificates (collectively, the "Related Documents")
contemplated by this Agreement, (B) take whatever action shall be required to be
taken by Seller by the terms of and subject to the terms of this Agreement and
the Related Documents and exercise its rights and to perform its duties under
this Agreement and the Related Documents, and (C) take such other action in
connection with the foregoing as the Owner Participant may from time to time
direct in writing.
9. INDEMNITY.
(A) From and after the Closing with respect to an Aircraft,
Buyer agrees to indemnify, save and hold harmless, Seller and Owner Participant,
as well as their respective affiliates, officers, agents and employees, from and
against any and all claims and liabilities of any type whatsoever, including,
without limitation, damage to or loss of any property (including such Aircraft)
or injuries to or death of any person whomsoever arising from and after such
Closing, arising out of or connected in any way with (i) Data provided
hereunder, or the condition, operation or maintenance of such Aircraft, or (ii)
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the ownership, use, condition, operation, maintenance and disposition by Buyer,
its successors, assigns or agents of such Aircraft or its related Data sold or
furnished hereunder, in each case, other than claims or liabilities arising
solely by virtue of the gross negligence or willful misconduct of the party to
be so indemnified.
(B) Prior to the Closing with respect to an Aircraft, Owner
Participant agrees to indemnify, save and hold harmless, Buyer, as well as its
respective affiliates, officers, agents and employees, from and against any and
all claims and liabilities of any type whatsoever, including, without
limitation, damage to or loss of any property (including such Aircraft) or
injuries to or death of any person whomsoever arising prior to such Closing,
arising out of or connected in any way with (i) Data provided hereunder, or the
condition, operation or maintenance of such Aircraft, or (ii) the ownership,
use, condition, operation, maintenance and disposition by Owner Participant, its
successors, assigns or agents of such Aircraft or its related Data sold or
furnished hereunder, in each case, other than claims or liabilities arising
solely by virtue of the gross negligence or willful misconduct of the party to
be so indemnified.
10. TAXES.
Any and all taxes, duties, imposts, levies, surcharges, and
other like charges ("Taxes") whatsoever arising out of the sale, use, ownership,
import, export, transfer, delivery or possession by Seller and/or Owner
Participant of any Aircraft pursuant to this Agreement which may be imposed by
any government or agency or subdivision thereof (but excluding therefrom any
Taxes arising or imposed with respect to the gross or net income of Seller or
the Owner Participant) shall be the sole responsibility and liability of Buyer.
If any such charge shall be made directly upon Seller and/or Owner Participant,
Buyer shall pay to Seller and/or Owner Participant upon demand the amount of any
such charge (together with interest and penalties thereon, if any) required to
be paid by Seller and/or Owner Participant as a result thereof.
11. EXCUSABLE DELAY, DAMAGE TO OR DESTRUCTION OF ANY AIRCRAFT.
(A) Neither Seller nor Owner Participant shall be liable for
any failure or delay in performing its obligations hereunder occasioned by any
of the following causes: any action by the Buyer; act of God or the public
enemy; civil war, insurrections, riots, terrorist activity, or criminal acts by
third parties; fires, floods, explosions, storms, earthquakes, serious
accidents, epidemics, or quarantine restrictions; any act of any government or
governmental entity, governmental priorities, allocation regulations or orders
affecting materials, facilities, or any Aircraft; strikes or other labor
difficulties causing cessation, slowdown or interruption of work; inability
after due and timely diligence to procure releases, materials, accessories,
equipment or parts; or any other cause beyond the control of Seller; provided,
however, that in the event of any such failure or delay, Seller will use its
best efforts to remedy such failure or delay so as to permit it to perform
hereunder. UNDER NO CIRCUMSTANCE SHALL SELLER AND/OR OWNER PARTICIPANT BE LIABLE
FOR LOSS OF USE OR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY DELAY,
EXCUSABLE OR INEXCUSABLE, AND BUYER HEREBY WAIVES ANY RIGHT TO SUCH DAMAGES.
(B) If any Aircraft is lost or destroyed prior to the Closing
relating thereto, the parties shall have no other or further liability to each
other with respect to such Aircraft. "Lost or destroyed" shall include any
Aircraft being unavailable to Seller and/or Owner Participant for an indefinite
period for any reason beyond Seller's and/or Owner Participant's control.
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(C) Except as otherwise provided in this Agreement, neither
Seller nor Owner Participant shall have any duty to repair any Aircraft or
replace components under any circumstances. If any Aircraft is damaged after
execution of this Agreement but prior to its Delivery, Seller shall determine,
at its sole discretion, if it is economically feasible to repair such Aircraft.
Seller shall promptly notify Buyer of its decision. If Seller determines to
repair any Aircraft, the time reasonably required to make such repairs shall be
deemed excusable under this Agreement, and Buyer shall thereafter perform an
Inspection of such Aircraft at its own expense to determine that such Aircraft
is then reasonably satisfactory to Buyer. If Seller elects not to repair such
Aircraft, then the parties shall have no other or further liability to each
other hereunder.
12. ASSIGNMENT OF WARRANTIES.
To the extent that any manufacturer's warranties or service
plans, are still in effect with respect to any Aircraft (other than warranties
which by their terms are unassignable), Seller, at Delivery, will take such
reasonable actions as Buyer may reasonably request to assist Buyer in
maintaining continuity of such warranties and service plans.
13. INSURANCE.
(A) Buyer shall procure and keep in force policies of
comprehensive general liability insurance for each Aircraft and its operation
and maintenance. Such policies shall be endorsed to cover contractual liability
hereunder including, without limitation, the indemnity and hold harmless
obligations of Buyer to Seller and Owner Participant and the other persons and
entities under this Agreement. Such policies shall contain customary clauses
providing thirty (30) days notice to Seller of cancellation or modification. All
such insurance shall be from insurers reasonably acceptable to Seller and Owner
Participant and shall be in amounts reasonably acceptable to Seller and Owner
Participant. Such coverage shall be maintained in effect for a period of at
least one (1) year after Delivery of such Aircraft.
(B) Buyer will furnish Seller certificates evidencing such
insurance prior to Delivery of each Aircraft hereunder. Buyer will furnish
Seller certificates evidencing any modification or replacement of coverage
before such modification or replacement takes effect.
14. ASSIGNMENT.
Seller may at any time assign or transfer all or any of the
rights, benefits and advantages of Seller hereunder, including the rights to
receive any payment hereunder, to any qualified intermediary for the purpose of
accomplishing a like-kind exchange of Seller's interest in any Aircraft for
federal income tax purposes. Any such assignment or transfer shall be subject to
this Agreement and the rights and interests of Buyer hereunder, and Buyer agrees
to execute such documents as Seller may reasonably request to accomplish the
purpose of such assignment at Seller's expense. Other than as set forth above,
no assignment of this Agreement or any right or obligation hereunder may be made
by Buyer or Seller (or any permitted assignee of Seller) without the prior
written consent of the other party.
15. NOTICES.
Notices under this Agreement shall be addressed as provided by
this paragraph and shall be sent by mail, telegram, telex, telefax, or any other
written means. Notice shall be deemed to have been properly given three (3) days
after such notice is deposited in the mail with sufficient postage, or
immediately after such notice is deposited with any telegraphic or cable agency
for immediate transmission, or is electronically transmitted.
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Seller's Address:
Wachovia Bank, National Association, as Trustee
920 King Street, Suite 102
Wilmington, Delaware 19801
Attn: Robert Sutton
Fax: (302) 888-7894
Telephone: (302) 888-7539
Buyer's Address:
OLSF, L.L.C.
c/o GA Telesis Turbine Technologies, L.L.C.
13000 NW 45th Avenue
Opa Locka, FL 33054
Attn: Abdol Moabery
Fax: (305) 769-5989
Telephone: (305) 769-5992
Owner Participant's Address:
Airlease Ltd.
c/o Airlease Management Services, Inc.
c/o Banc of America Leasing & Capital, LLC
555 California Street, 4th Floor
San Francisco, CA 94104
Attn: Jad Mansour
Fax: (415) 765-1817
Telephone: (415) 765-1848
16. GOVERNING LAW.
This Agreement shall be governed by the internal laws of the
State of New York. The parties unconditionally and irrevocably submit to the
jurisdiction of the state and federal courts sitting in the State of New York
for any and all matters pertaining to the parties' rights and obligations under
this Agreement. Should legal action be required to enforce any provisions of
this Agreement, the prevailing party shall be entitled to recover reasonable
attorney's fees and costs.
17. EXPENSES.
Buyer and Seller hereby agree that each shall be responsible
for its own costs and expenses incurred in negotiating, documenting and closing
the transaction contemplated by this Agreement and any other documents or
instruments related to this Agreement and/or the transaction hereunder; PROVIDED
that Owner Participant shall pay all reasonable costs and expenses incurred by
Seller (including, without limitation, costs and fees of Seller's legal counsel,
Morris, James, Hitchens & Williams LLP) and an administrative fee of $500.00
concurrent with each Closing. Buyer shall pay all fees, costs and expenses of
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Crowe & Dunlevy with respect to each Aircraft, other than those fees, costs and
expenses associated with lien searches for each Aircraft. Owner Participant
shall pay all fees, costs and expenses of Crowe & Dunlevy for lien searches
respecting each Aircraft, including the update to the respective lien search for
the applicable Aircraft at the Second Closing and the Third Closing in
accordance with Section 4(E) hereof.
18. CONFIDENTIALITY.
Each of the parties hereto agrees to maintain the
confidentiality of the terms, conditions and contents of this Agreement and any
related documents hereto and the transactions contemplated hereunder (the
"Information"), except that such Information may be disclosed: (a) by the
parties hereto to their respective affiliates, directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the persons and/or entities to whom such disclosure is made will
be informed of the confidential nature of such Information and instructed to
keep such Information confidential); (b) to the extent requested by any
regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; or (d) to any other
party to this Agreement or any other related document. Any person or entity
required to maintain the confidentiality of Information as provided in this
section shall be considered to have complied with its obligation to do so if
such person or entity has exercised the same degree of care to maintain the
confidentiality of such Information as such person or entity would accord to its
own confidential information.
19. SEVERABILITY OF PROVISIONS.
Any provision of this Agreement unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
20. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDMENITIES.
All representations, warranties and indemnities made hereunder
shall survive the execution and delivery hereof. Such representations,
warranties and indemnities have been or will be relied upon by the applicable
parties hereto, and shall continue in full force and effect as long as any
obligation hereunder shall remain outstanding.
21. FURTHER ASSURANCES.
Each party to this Agreement shall perform any further acts
and execute and deliver any additional documents that may be reasonably
necessary to carry out the provisions of this Agreement.
22. COUNTERPARTS.
This Agreement may be executed in any number of counterparts
(including by telefacsimile transmission), which together shall constitute one
instrument, and shall bind and inure to the benefit of the parties and their
respective permitted successors and assigns.
11
23. ENTIRE AGREEMENT.
This Agreement supersedes all previous discussions,
negotiations, and communications, and constitutes the entire agreement between
the parties. This Agreement may only be supplemented or amended by a written
instrument executed on behalf of the parties by their duly authorized
representatives.
[SIGNATURES ON THE FOLLOWING PAGE]
12
BUYER:
OLSF, L.L.C.
By: GA TELESIS TURBINE TECHNOLOGIES, L.L.C.
Title: Member
By: _________________________
Name: _________________________
Title: _________________________
SELLER:
WACHOVIA BANK, NATIONAL ASSOCIATION,
NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY IN ITS
CAPACITY AS TRUSTEE UNDER THAT CERTAIN TRUST
AGREEMENT, DATED JULY 10, 1986 (AS AMENDED,
MODIFIED AND/OR SUPPLEMENTED FROM TIME TO TIME),
ORIGINALLY ENTERED INTO AMONG AIRLEASE LTD, AS
OWNER PARTICIPANT, MERIDIAN TRUST COMPANY, AS
TRUSTEE, AND AIRLEASE MANAGEMENT SERVICES, INC., AS
AGENT
By: _________________________
Name: _________________________
Title: _________________________
OWNER PARTICIPANT:
AIRLEASE LTD.
By: Airlease Management Services, Inc.
Title: General Partner
By: ______________________________
Name: ______________________________
Title: ______________________________
Exhibit A
To
Aircraft Sales Agreement
DESCRIPTION OF AIRCRAFT
AIRCRAFT ONE:
1. One McDonnell Douglas Model DC-9-Series 80 aircraft bearing
manufacturer's serial number 48042 and FAA Registration No. N810US;
2. Together with two Pratt & Whitney Model JTD8-217 Turbofan engines
installed thereon, bearing manufacturer's serial numbers P708110D and P708108D,
respectively; and
3. Together with all appliances, parts, instruments, appurtenances,
accessories, furnishings and other equipment or property incorporated, installed
in or attached to said aircraft and engines.
AIRCRAFT TWO:
1. One McDonnell Douglas Model DC-9-Series 80 aircraft bearing
manufacturer's serial number 48040 and FAA Registration No. N808US;
2. Together with two Pratt & Whitney Model JTD8-217 Turbofan engines
installed thereon, bearing manufacturer's serial numbers P708114D and P708109D,
respectively; and
3. Together with all appliances, parts, instruments, appurtenances,
accessories, furnishings and other equipment or property incorporated, installed
in or attached to said aircraft and engines.
AIRCRAFT THREE:
1. One McDonnell Douglas Model DC-9-Series 80 aircraft bearing
manufacturer's serial number 48041 and FAA Registration No. N809US;
2. Together with two Pratt & Whitney Model JTD8-217 Turbofan engines
installed thereon, bearing manufacturer's serial numbers P708117D and P708118D,
respectively; and
3. Together with all appliances, parts, instruments, appurtenances,
accessories, furnishings and other equipment or property incorporated, installed
in or attached to said aircraft and engines.
A-1