EXHIBIT 2.1
AIRCRAFT PURCHASE AGREEMENT
This AIRCRAFT PURCHASE AGREEMENT, dated as of May 10, 2004
(this "AGREEMENT"), by and among JETRAN INTERNATIONAL, LTD., a limited
partnership organized under the laws of Texas ("BUYER OWNER PARTICIPANT"),
AIRLEASE LTD., a limited partnership organized under the laws of California
("SELLER OWNER PARTICIPANT"), ALAMEDA CORPORATION, not in its individual
capacity but solely as owner trustee ("BUYER OWNER TRUSTEE") under that certain
Trust Agreement dated March 27, 2002 with Buyer Owner Participant, as amended
and supplemented from time to time (the "BUYER TRUST AGREEMENT") and WACHOVIA
BANK, NATIONAL ASSOCIATION, as successor to FIRST UNION NATIONAL BANK, not in
its individual capacity but solely as owner trustee ("SELLER OWNER TRUSTEE")
under that certain Trust Agreement dated as of July 10, 1986 (as amended,
modified and/or supplemented from time to time) with Seller Owner Participant
(the "SELLER TRUST AGREEMENT").
WHEREAS, Seller Owner Participant is the beneficial owner of
those certain Aircraft (as defined in SECTION 1.1) and Seller Owner Trustee is
the legal owner of such Aircraft under the Seller Trust Agreement; and
WHEREAS, Seller Owner Participant and Seller Owner Trustee
wish to sell to Buyer Owner Participant and Buyer Owner Trustee, and Buyer Owner
Participant and Buyer Owner Trustee wish to purchase from Seller Owner
Participant and Seller Owner Trustee, all of Seller Owner Participant's and
Seller Owner Trustee's right, title and interest in and to the Aircraft and the
Aircraft Documents (as defined in SECTION 1.1);
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties herein contained, the parties hereby
agree as follows:
1. DEFINITIONS AND INTERPRETATION.
1.1 DEFINITIONS. For all purposes of this Agreement,
capitalized terms shall have the following meanings:
"AFTER-TAX BASIS" shall mean on a basis such that any payment
required to be paid on such basis (the "REQUIRED PAYMENT") shall, if necessary,
be supplemented by a further payment so that the sum of the two payments, after
deduction of the amount of all taxes, penalties, fines, interest and other
charges ("TAXES") resulting from the receipt (actual or constructive) of such
payments imposed by or under any taxing authority, shall be equal to the
Required Payment.
"AIRCRAFT" shall mean N806US and N807US collectively.
"AIRCRAFT DELIVERY CERTIFICATES" shall mean the aircraft
delivery certificates regarding N806US and N807US, respectively, substantially
in the form attached hereto as EXHIBITS F and G, each dated the Closing Date,
from Buyer Owner Participant to Seller Owner Participant.
"AIRCRAFT DOCUMENTS" shall mean all technical data, manuals,
logbooks, records, computer data and other materials and documents maintained or
required to be maintained in accordance with applicable law with respect to the
Aircraft.
"AIRCRAFT LEASE AGREEMENTS" shall mean each of the aircraft
lease agreements dated as of November 21, 2001 among Seller Owner Trustee,
Seller Owner Participant and Lessee regarding N806US and N807US respectively.
"AIRCRAFT PACKAGE" shall mean the Aircraft and the Aircraft
Documents.
"AVIATION AUTHORITY" shall mean the United States Federal
Aviation Administration.
"BUSINESS DAY" shall mean any day except a Saturday, Sunday or
other day on which banks in San Francisco, California or San Antonio, Texas are
not open for business.
"BUYER" shall mean Buyer Owner Trustee and Buyer Owner
Participant collectively.
"BUYER OWNER PARTICIPANT" shall have the meaning set forth in
the introductory paragraph.
"BUYER OWNER TRUSTEE" shall have the meaning set forth in the
introductory paragraph.
"BUYER TRUST AGREEMENT" shall have the meaning set forth in
the introductory paragraph.
"CLOSING" shall mean the completion of the sale and purchase
of the Aircraft Package contemplated by this Agreement.
"CLOSING DATE" shall have the meaning set forth in SECTION 4
hereof.
"DEPOSIT" shall have the meaning set forth in SECTION 3.2
hereof.
"FAA BILLS OF SALE" shall mean the two Federal Aviation
Authority Form 8050-2 Bills of Sale regarding N806US and N807US, respectively,
each dated the Closing Date, from Seller Owner Trustee to Buyer Owner Trustee.
"INDEMNITEES" shall mean Seller Owner Participant and Seller
Owner Trustee and each of their officers, directors, employees and agents and
any successors or assigns.
"LESSEE" shall mean CSI Aviation Services, Inc., a company
incorporated under the laws of New Mexico.
"LESSEE CERTIFICATE" shall mean the Lessee Certificate
substantially in the form attached hereto as Exhibit C, to be executed by Lessee
and delivered to Buyer Owner Participant at the Closing.
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"LIEN" shall mean any mortgage, charge, pledge, lien,
encumbrance, right of detention or security interest whatsoever, howsoever
created or arising.
"LOSSES" shall mean losses, liabilities, actions, claims,
proceedings, penalties, fines, judgments, damages, fees, costs and expenses.
"N806US" shall mean that certain McDonnell Douglas DC-9 Series
82 aircraft bearing manufacturer's serial number 48038 and registration mark
N806US, together with the N806US Engines and all N806US Parts.
"N806US ENGINES" shall mean each of the two Pratt & Whitney
JT8D-217 engines bearing, respectively, manufacturer's serial numbers P708517
and P708136.
"N806US LEASE TERMINATION AGREEMENT" shall mean the agreement
providing for the termination of the Aircraft Lease Agreement in respect of
N806US substantially in the form attached hereto as Exhibit D to be entered into
by Lessee and Seller.
"N806US PARTS" shall mean all appliances, accessories, parts,
instruments, modules, components, equipment and furnishings installed on or
delivered as a part of N806US on the Closing Date.
"N807US" shall mean that certain McDonnell Douglas DC-9 Series
82 aircraft bearing manufacturer's serial number 48039 and registration mark
N807US, together with the N807US Engines and all N807US Parts.
"N807US ENGINES" shall mean each of the two Pratt & Whitney
JT8D-217 engines bearing, respectively, manufacturer's serial numbers P708113
and P696370.
"N807US LEASE TERMINATION AGREEMENT" shall mean the agreement
providing for the termination of the Aircraft Lease Agreement in respect of
N807US substantially in the form attached hereto as Exhibit E to be entered into
by Lessee and Seller.
"N807US PARTS" shall mean all appliances, accessories, parts,
instruments, modules, components, equipment and furnishings installed on or
delivered as a part of N807US on the Closing Date.
"OPERATIVE DOCUMENTS" shall mean this Agreement, the Seller
Trust Agreement, the Buyer Trust Agreement, the FAA Bills of Sale, the Warranty
Bills of Sale, the Lessee Certificate, the N806US Lease Termination Agreement,
the N807US Lease Termination Agreement, the Aircraft Delivery Certificates and
any other document, instrument, certificate or opinion delivered in connection
with the transactions contemplated hereby.
"PERSON" shall mean any individual, firm, partnership, joint
venture, trust, corporation, limited liability company, government agency,
committee, department, authority or any body, incorporated or unincorporated,
whether having a distinct legal personality or not.
"PURCHASE PRICE" shall have the meaning set forth in SECTION
3.
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"SELLER" means Seller Owner Trustee and Seller Owner
Participant collectively.
"SELLER OWNER PARTICIPANT" shall have the meaning set forth in
the introductory paragraph.
"SELLER OWNER TRUSTEE" shall have the meaning set forth in the
introductory paragraph.
"SELLER TRUST AGREEMENT" shall have the meaning set forth in
the introductory paragraph.
"WARRANTY BILLS OF SALE" shall mean the two Warranty Bills of
Sale regarding N806US and N807US, respectively, substantially in the form
attached hereto as EXHIBITS A and B, respectively, and to be delivered and
released to Buyer Owner Participant at the Closing.
1.2 INTERPRETATION. In this Agreement, unless the context
requires otherwise, any reference to: (i) a "party" or "the parties" is to a
party or the parties (as the case may be) to this Agreement; (ii) a Section,
Schedule or Exhibit is to a section of, a schedule to, or an exhibit to this
Agreement (as the case may be); (iii) "this Agreement" includes the Recitals,
the Exhibits and the Schedules which form part of this Agreement for all
purposes; (iv) a law, statute, statutory provision or regulation includes any
consolidation, re-enactment, modification or replacement of the same and any
subordinate legislation in force under any of the same from time to time; (v)
the masculine, feminine or neuter gender respectively includes the other
genders, references to the singular include the plural (and vice versa) and
references to persons include firms, corporations and unincorporated
associations; and (vi) a document is to that document as varied, supplemented or
replaced from time to time in accordance with its terms. Section headings are
for ease of reference only.
2. SALE AND PURCHASE.
2.1 SALE AND PURCHASE OF THE AIRCRAFT PACKAGE. On the Closing
Date, and upon the terms and subject to the conditions set forth herein (i)
Seller shall sell to Buyer the Aircraft Package and (ii) Buyer shall purchase
the Aircraft Package from Seller for the consideration specified in SECTION 3
hereof.
2.2 RISK AND TRANSFER. All right, title and interest in and to
the Aircraft Package and the risk of loss or destruction of, or damage to, the
Aircraft and all other risks relating thereto shall pass to Buyer upon delivery
and release of the Warranty Bills of Sale and the FAA Bills of Sale to Buyer.
3. CONSIDERATION FOR THE SALE.
3.1 PURCHASE PRICE. In consideration of the sale of the
Aircraft Package to Buyer as contemplated by Section 2 hereof, Buyer Owner
Participant shall pay to Seller Owner Participant the total purchase price (the
"Purchase Price") of two million seven hundred thousand dollars ($2,700,000); of
which one million four hundred thousand dollars ($1,400,000) represents
consideration for the sale of N806US and one million three hundred thousand
dollars ($1,300,000) represents consideration for the sale of N807US.
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3.2 Security. Buyer Owner Participant has caused to be
transferred to Seller Owner Participant a two hundred thousand dollar ($200,000)
non-refundable deposit (the "Deposit") in connection with its purchase of the
Aircraft. On the Closing Date, the Deposit shall be applied to the payment of
the Purchase Price.
4. CLOSING; TERMINATION.
4.1 GENERAL. The Closing shall take place on May 10, 2004, or
as soon as possible thereafter. The date on which the Closing actually occurs is
herein called the "CLOSING DATE."
4.2 CLOSING. On or before the Closing Date, Seller shall
deliver to McAfee & Taft the FAA Bills of Sale and to Buyer Owner Participant
the Warranty Bills of Sale, which shall be held in escrow until Jad D. Mansour
or Jeffrey S. Robinson releases the FAA Bills of Sale and the Warranty Bills of
Sale to Buyer orally or in writing. On the Closing Date, Buyer shall deliver the
Purchase Price to Seller via wire transfer of immediately available funds to
Seller Owner Participant's following account:
Bank of America
ABA # 121000358
Account # 12331-34432
Account of: Airlease Ltd.
Ref: N806US & N807US
Upon confirmation of Seller Owner Participant's receipt of the Purchase Price,
Seller shall release the Warranty Bills of Sale and the FAA Bills of Sale to
Buyer Owner Participant, and Buyer shall cause McAfee & Taft to file the FAA
Bills of Sale with the Aviation Authority.
4.3 TERMINATION. Seller Owner Participant may terminate this
Agreement by giving written notice of such termination to Buyer Owner
Participant if:
(a) the Aircraft is tendered for sale on the Closing
Date, the conditions precedent set forth in SECTION 11 are satisfied as
of such date and Buyer fails to pay the Purchase Price or Buyer fails
to accept the Aircraft and such failure continues for a period of two
Business Days after Buyer's receipt of written notice of such failure;
(b) Buyer fails to perform any of its obligations
under this Agreement and such failure (if capable of cure) continues
for a period of two Business Days after receipt of written notice of
such failure;
(c) for any reason whatsoever the sale of the
Aircraft Package to Buyer hereunder does not occur on or before June 1,
2004 (but only if Seller has not failed to perform any of its material
obligations hereunder).
Upon any such termination the parties hereto shall have no further liability or
obligation of any kind hereunder and Seller Owner Participant shall be entitled
to the Deposit.
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5. REPRESENTATIONS AND WARRANTIES OF SELLER OWNER PARTICIPANT. Seller
Owner Participant represents and warrants, as of the date hereof and as of the
Closing Date (unless as otherwise indicated in a specific representation and
warranty), as follows:
5.1 CORPORATE EXISTENCE, POWER AND AUTHORITY. Seller Owner
Participant is a limited partnership duly organized and validly existing under
the laws of California, and has the power and authority to enter into, and
perform its obligations under, each of the Operative Documents to which it is a
party.
5.2 AUTHORIZATION AND ENFORCEABILITY. The execution and
delivery by Seller Owner Participant of each of the Operative Documents to which
it is a party and its performance of the transactions contemplated thereby, have
been, or will upon execution be, duly authorized by all requisite action and
proceedings of Seller Owner Participant. This Agreement has been duly executed
and delivered by Seller Owner Participant, and each other Operative Document to
which Seller Owner Participant is a party has been, or will at Closing be, duly
executed and delivered by Seller Owner Participant. This Agreement and each
other Operative Document to which Seller Owner Participant is a party, when
executed and delivered, will be the legal, valid and binding obligations of
Seller Owner Participant, enforceable against it in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting the rights and remedies of creditors
generally and subject to the effect of general principles of equity, whether
applied by a court of law or equity.
5.3 NO CONFLICT. Neither the execution and delivery of this
Agreement or any other Operative Document to which Seller Owner Participant is a
party, nor the performance by Seller Owner Participant of the transactions
contemplated hereby or thereby, will (i) violate any provision of Seller Owner
Participant's charter document or by-laws, (ii) conflict with or result in a
breach of any material agreement or instrument to which Seller Owner Participant
is a party or by which Seller Owner Participant is bound, (iii) violate any
judgment, order, injunction, decree or award of any court, administrative agency
or governmental body against, or binding upon, Seller Owner Participant, or (iv)
constitute a violation by Seller Owner Participant of any law or regulation
applicable to Seller Owner Participant.
5.4 CONSENTS. The execution and delivery of the Operative
Documents to which Seller Owner Participant is a party and its performance of
the transactions contemplated thereby does not require the approval of any
equity holder or the consent of any trustee or holder of any indebtedness or
obligation of Seller Owner Participant which will not have been obtained on or
before the Closing.
5.5 GOVERNMENTAL APPROVALS, NOTICES AND FILINGS. No consent or
approval of, giving of notice to, registration with, or taking of any action in
respect of or by, any governmental authority or agency of California is required
with respect to the execution, delivery or performance by Seller Owner
Participant of this Agreement or the other Operative Documents to which it is a
party, or the consummation by Seller Owner Participant of any of the
transactions on its part contemplated hereby or thereby.
5.6 LEGAL PROCEEDINGS. There are no actions, suits or
proceedings pending, or to Seller Owner Participant's knowledge threatened,
against Seller Owner Participant, that, if adversely determined, would hinder or
prevent Seller Owner Participant's ability to carry out the transactions
contemplated by this Agreement or any other Operative Document or affect the
right, title or interest of Seller Owner Participant in the Aircraft Package.
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5.7 TITLE. (i) Immediately following the Closing, Seller Owner
Trustee will have good and marketable title to the Aircraft, free and clear of
all Liens of any kind whatsoever other than any such Lien arising out of claims
payable by or indemnified against by Lessee ("LESSEE LIEN"), and (iii) the
delivery of the Warranty Bills of Sale and the FAA Bills of Sale to Buyer will
convey to Buyer good and marketable title to the Aircraft, free and clear of all
Liens of any kind whatsoever other than any Lessee Lien, and Seller Owner
Participant hereby covenants and agrees to warrant and defend such title forever
against all claims and demands whatsoever.
6. REPRESENTATIONS AND WARRANTIES OF BUYER OWNER PARTICIPANT. Buyer
Owner Participant represents and warrants, as of the date hereof and as of the
Closing Date, as follows:
6.1 CORPORATE EXISTENCE, POWER AND AUTHORITY. Buyer Owner
Participant is a limited partnership duly organized, validly existing and in
good standing under the laws of the jurisdiction of Texas, and has the corporate
power and authority to enter into, and perform its obligations under, each of
the Operative Documents to which it is a party.
6.2 AUTHORIZATION AND ENFORCEABILITY. The execution and
delivery by Buyer Owner Participant of each of the Operative Documents to which
it is a party and the performance by Buyer Owner Participant of the transactions
contemplated thereby, have been, or will upon execution be, duly authorized by
all requisite action and proceedings of Buyer Owner Participant. This Agreement
has been duly executed and delivered by Buyer Owner Participant, and each other
Operative Document to which Buyer Owner Participant is a party has been, or will
at Closing be, duly executed and delivered by Buyer Owner Participant. This
Agreement, and each other Operative Document to which Buyer Owner Participant is
a party, when executed and delivered, will be the legal, valid and binding
obligations of Buyer Owner Participant, enforceable against Buyer Owner
Participant in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar laws
affecting the rights and remedies of creditors generally and subject to the
effect of general principles of equity, whether applied by a court of law or
equity.
6.3 NO CONFLICT. Neither the execution and delivery by Buyer
Owner Participant of this Agreement or any other Operative Document to which
Buyer Owner Participant is a party, nor the performance by Buyer Owner
Participant of the transactions contemplated hereby or thereby, will (i) violate
any provision of Buyer Owner Participant's charter document or by-laws, (ii)
conflict with or result in a breach of any material agreement or instrument to
which Buyer Owner Participant is a party or by which Buyer Owner Participant is
bound, (iii) violate any judgment, order, injunction, decree or award of any
court, administrative agency or governmental body against, or binding upon,
Buyer Owner Participant, or (iv) constitute a violation by Buyer Owner
Participant of any law or regulation applicable to Buyer Owner Participant.
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6.4 CONSENTS. The acquisition of the Aircraft Package by Buyer
Owner Participant, the execution and delivery of any Operative Document to which
Buyer Owner Participant is a party and the performance by Buyer of the
transactions contemplated thereby, do not require the approval of any equity
holder or the approval or consent of any trustee or any holder of any
indebtedness or obligation of Buyer Owner Participant which will not have been
obtained on or before the Closing.
6.5 GOVERNMENTAL APPROVALS, NOTICES AND FILINGS. No consent or
approval of, giving of notice to, registration with, or taking of any action in
respect of or by any governmental authority or agency of Texas is required with
respect to the execution, delivery or performance by Buyer Owner Participant of
this Agreement or the other Operative Documents to which it is a party, or the
consummation by Buyer Owner Participant of any of the transactions on its part
contemplated hereby or thereby.
6.6 LEGAL PROCEEDINGS. There are no actions, suits or
proceedings pending, or to Buyer Owner Participant's knowledge threatened,
against Buyer Owner Participant that, if adversely determined, would hinder or
prevent Buyer Owner Participant's ability to carry out the transactions
contemplated by this Agreement or any other Operative Document.
7. REPRESENTATIONS AND WARRANTIES OF BUYER OWNER TRUSTEE. Buyer Owner
Trustee represents and warrants, as of the date hereof and as of the Closing
Date, as follows:
7.1 CORPORATE EXISTENCE, POWER AND AUTHORITY. Buyer Owner
Trustee is a corporation duly organized, validly existing and in good standing
under the laws of the state of Texas, and has the corporate power and authority
to enter into, and perform its obligations under, each of the Operative
Documents to which it is a party.
7.2 AUTHORIZATION AND ENFORCEABILITY. The execution and
delivery by Buyer Owner Trustee of each of the Operative Documents to which it
is a party and the performance by Buyer Owner Trustee of the transactions
contemplated thereby, have been, or will upon execution be, duly authorized by
all requisite action and proceedings of Buyer Owner Trustee. This Agreement has
been duly executed and delivered by Buyer Owner Trustee, and each other
Operative Document to which Buyer Owner Trustee is a party has been, or will at
Closing be, duly executed and delivered by Buyer Owner Trustee. This Agreement,
and each other Operative Document to which Buyer Owner Trustee is a party, when
executed and delivered, will be the legal, valid and binding obligations of
Buyer Owner Trustee, enforceable against Buyer Owner Trustee in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting the rights and
remedies of creditors generally and subject to the effect of general principles
of equity, whether applied by a court of law or equity.
7.3 NO CONFLICT. Neither the execution and delivery by Buyer
Owner Trustee of this Agreement or any other Operative Document to which Buyer
Owner Trustee is a party, nor the performance by Buyer Owner Trustee of the
transactions contemplated hereby or thereby, will (i) violate any provision of
Buyer Owner Trustee's charter document or by-laws, (ii) conflict with or result
in a breach of any material agreement or instrument to which Buyer Owner Trustee
is a party or by which Buyer Owner Trustee is bound, (iii) violate any judgment,
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order, injunction, decree or award of any court, administrative agency or
governmental body against, or binding upon, Buyer Owner Trustee, or (iv)
constitute a violation by Buyer Owner Trustee of any law or regulation
applicable to Buyer Owner Trustee.
7.4 CONSENTS. The acquisition of the Aircraft Package by Buyer
Owner Trustee, the execution and delivery of any Operative Document to which
Buyer Owner Trustee is a party and the performance by Buyer Owner Trustee of the
transactions contemplated thereby, do not require any shareholder approval or
the approval or consent of any trustee or any holder of any indebtedness or
obligation of Buyer Owner Trustee which will not have been obtained on or before
the Closing.
7.5 GOVERNMENTAL APPROVALS, NOTICES AND FILINGS. No consent or
approval of, giving of notice to, registration with, or taking of any action in
respect of or by any governmental authority or agency of Buyer Owner Trustee's
jursidiction of organization is required with respect to the execution, delivery
or performance by Buyer Owner Trustee of this Agreement or the other Operative
Documents to which it is a party, or the consummation by Buyer Owner Trustee of
any of the transactions on its part contemplated hereby or thereby.
7.6 LEGAL PROCEEDINGS. There are no actions, suits or
proceedings pending, or to Buyer Owner Trustee's knowledge threatened, against
Buyer Owner Trustee that, if adversely determined, would hinder or prevent Buyer
Owner Trustee's ability to carry out the transactions contemplated by this
Agreement or any other Operative Document.
8. REPRESENTATIONS AND WARRANTIES OF SELLER OWNER TRUSTEE. Seller Owner
Trustee represents and warrants, as of the date hereof and as of the Closing
Date (unless as otherwise indicated in a specific representation and warranty),
as follows:
8.1 CORPORATE EXISTENCE, POWER AND AUTHORITY. Seller Owner
Trustee is a national banking association duly organized, validly existing and
in good standing under the laws of the United States, and has the corporate
power and authority to enter into, and perform its obligations under, this
Agreement and each of the Operative Documents to which it is a party.
8.2 AUTHORIZATION AND ENFORCEABILITY. The execution and
delivery by Seller Owner Trustee of this Agreement and each of the Operative
Documents to which it is a party and the performance by Seller Owner Trustee of
the transactions contemplated hereby and thereby, have been, or will upon
execution be, duly authorized by all requisite action and proceedings of Seller
Owner Trustee. This Agreement has been duly executed and delivered by Seller
Owner Trustee, and each other Operative Document to which Seller Owner Trustee
is a party has been, or will at Closing be, duly executed and delivered by
Seller Owner Trustee. This Agreement, and each other Operative Document to which
Seller Owner Trustee is a party, when executed and delivered, will be the legal,
valid and binding obligations of Seller Owner Trustee, enforceable against
Seller Owner Trustee in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of creditors generally and
subject to the effect of general principles of equity, whether applied by a
court of law or equity.
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8.3 NO CONFLICT. Neither the execution and delivery by Seller
Owner Trustee of this Agreement or any other Operative Document to which Seller
Owner Trustee is a party, nor the performance by Seller Owner Trustee of the
transactions contemplated hereby or thereby, will (i) violate any provision of
Seller Owner Trustee's charter or by-laws, (ii) conflict with or result in a
breach of any material agreement or instrument to which Seller Owner Trustee is
a party or by which Seller Owner Trustee is bound, (iii) violate any judgment,
order, injunction, decree or award of any court, administrative agency or
governmental body against, or binding upon, Seller Owner Trustee, or (iv)
constitute a violation by Seller Owner Trustee of any law or regulation
applicable to Seller Owner Trustee.
8.4 CONSENTS. The transfer of the Aircraft Package by Seller
Owner Trustee to Buyer, the execution and delivery of any Operative Document to
which Seller Owner Trustee is a party and the performance by Seller Owner
Trustee of the transactions contemplated thereby do not require any stockholder
approval or the approval or consent of any lessee of the Aircraft, or any
trustee or holder of any indebtedness or obligation of Owner Trustee which will
not have been obtained on or before the Closing.
8.5 GOVERNMENTAL APPROVALS, NOTICES AND FILINGS. No consent or
approval of, giving of notice to, registration with, or taking of any action in
respect of or by, any governmental authority or agency of Seller Owner Trustee's
jurisdiction of organization is required with respect to the execution, delivery
or performance by Seller Owner Trustee of this Agreement or the other Operative
Documents to which it is a party, or the consummation by Seller Owner Trustee of
any of the transactions on its part contemplated hereby or thereby, other than
as contemplated hereunder or under the Operative Documents.
8.6 LEGAL PROCEEDINGS. There are no actions, suits or
proceedings pending, or to Seller Owner Trustee's knowledge threatened, against
Seller Owner Trustee, that, if adversely determined, would hinder or prevent
Seller Owner Trustee's ability to carry out the transactions contemplated by
this Agreement or any other Operative Document or affect the right, title or
interest of Seller Owner Trustee in the Aircraft Package.
8.7 TITLE. (i) Immediately following the Closing, Seller Owner
Trustee will have good and marketable title to the Aircraft, free and clear of
all Liens of any kind whatsoever other than any Lessee Lien, and (iii) the
delivery of the Warranty Bills of Sale and the FAA Bills of Sale to Buyer will
convey to Buyer good and marketable title to the Aircraft, free and clear of all
Liens of any kind whatsoever other than any Lessee Lien.
9. REPRESENTATIONS AND WARRANTIES OF SELLER OWNER TRUSTEE IN ITS
INDIVIDUAL CAPACITY. Seller Owner Trustee in its individual capacity represents
and warrants, as of the date hereof and as of the Closing Date, as follows:
9.1 AUTHORIZATION AND ENFORCEABILITY. (i) This Agreement and
the Operative Agreements to which it in its individual capacity is a party have
been, or at the time of execution and delivery of such instrument will be, (a)
duly authorized by all requisite action and proceedings of Seller Owner Trustee,
and (b) duly executed and delivered by an officer of Seller Owner Trustee who is
duly authorized to execute and deliver such instruments on behalf of Seller
Owner Trustee, and (ii) that this Agreement and the other Operative Documents to
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the extent entered into by Seller Owner Trustee in its individual capacity
constitutes (or at the time of execution and delivery of any such instrument by
it will constitute) the legal, valid and binding obligation of Seller Owner
Trustee enforceable against Seller Owner Trustee in its individual capacity in
accordance with its terms.
9.2 ABSENCE OF SELLER OWNER TRUSTEE LIENS. The Aircraft is
free of Liens attributable to Seller Owner Trustee in its individual capacity
and unrelated to its rights, duties or obligations as owner trustee, and Seller
Owner Trustee in its individual capacity hereby covenants and agrees to remove
any such Lien at its own expense.
10. FULFILLMENT OF CONDITIONS AND BUYER UNDERTAKINGS.
10.1 FULFILLMENT OF CONDITIONS. Each of the parties shall use
all reasonable efforts to fulfill or obtain the fulfillment of conditions set
forth herein as they relate to such party on or prior to the Closing Date. Each
of Buyer and Seller shall at the written request of the other confirm in writing
which of the conditions have been satisfied and its reason(s) for refusing to
accept proffered performance of any of the other conditions.
10.2 TAXES AND TAX INDEMNITY. Buyer will be responsible for
the payment of any sales, value added or transfer taxes (collectively "TRANSFER
TAXES") imposed in regard to the transfer of title to the Aircraft from Seller
to Buyer. Each of Seller and Buyer will use commercially reasonable efforts to
minimize any Transfer Taxes. Buyer Owner Participant hereby indemnifies Seller
Owner Participant and Seller Owner Trustee (in its individual and trustee
capacities) on an After-Tax Basis and agrees to hold them harmless against any
and all Transfer Taxes that may be incurred or payable in respect of the
transfer of the Aircraft Package to Buyer.
10.3 EXPIRATION OF CURRENT LEASES. Seller and Buyer agree that
Lessee's compliance with the return conditions specified in Section 5 of each
Aircraft Lease Agreement shall not be a condition precedent to the completion of
the purchase and sale of the Aircraft pursuant to this Agreement. In the event
that either or both Aircraft shall not, in the reasonable estimation of Buyer
Owner Trustee, be in a condition that meets such return conditions, Buyer Owner
Participant may request (prior to Closing) that Seller assign all of its right
(if any) to enforce such return conditions to Buyer Owner Participant pursuant
to Section 13 of the applicable Aircraft Lease Agreement, and Seller shall
provide such assignment in a form reasonably acceptable to Buyer Owner
Participant prior to Closing.
11. CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO CLOSE. The
obligation of Buyer to purchase the Aircraft Package pursuant to this Agreement
is subject to the fulfillment on or prior to the Closing Date of the following
conditions, any one or more of which may be waived by it:
11.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of Seller Owner Participant and Seller Owner
Trustee, and each of them, contained in this Agreement and the other Operative
Documents to which either is a party shall be true in all material respects on
and as of the Closing Date with the same force and effect as though made on and
as of the Closing Date. Each of Seller Owner Participant and Seller Owner
Trustee shall have performed and complied with all material covenants and
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agreements required by this Agreement and the other Operative Documents to which
it is a party to be performed or complied with by it on or prior to the Closing
Date.
11.2 DELIVERY OF DOCUMENTS.
(a) Buyer Owner Participant shall have received, in form and
substance satisfactory to Buyer Owner Participant acting reasonably, evidence
that each of Seller Owner Participant and Seller Owner Trustee has taken all
action necessary to authorize the execution and delivery of the Operative
Documents to which it is a party and the performance of its obligations
thereunder;
(b) The Warranty Bills of Sale shall have been duly executed
and delivered to Buyer Owner Participant;
(c) The FAA Bills of Sale shall have been duly executed and
sent to McAfee & Taft; and
(d) The Lessee Certificate shall have been duly executed by
Lessee and delivered to Buyer Owner Participant.
11.3 TITLE AND REGISTRATION. Seller Owner Trustee shall have
good and marketable title to the Aircraft Package free and clear of all Liens of
any kind whatsoever other than any Lessee Lien, Lien of the Seller Trust
Agreement and Liens of the Aircraft Lease Agreements.
11.4 NO LITIGATION. No action, suits or proceedings or any
governmental action shall have been instituted or be threatened before any court
or before or by any governmental agency, nor shall any injunction, restraining
order, order, judgment or decree have been issued or proposed to be issued by
any court or governmental agency, and not withdrawn or revoked, as of the
Closing Date, questioning the validity or legality of this Agreement or the
other Operative Documents or the transactions contemplated hereby or thereby or
the ability of the parties hereto to consummate the transactions contemplated
hereby or thereby.
11.5 AIRCRAFT LOCATION. The Aircraft shall at the time of the
Closing be on the ground in [ ] or at another location acceptable
to Buyer Owner Participant.
12. CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER TO CLOSE. The
obligation of each of Seller Owner Trustee and Seller Owner Participant to sell
the Aircraft Package or to cause the same to be sold (and in particular to
deliver, or cause to be delivered, the Warranty Bills of Sale and FAA Bills of
Sale) pursuant to this Agreement is subject to the fulfillment on or prior to
the Closing Date of the following conditions, any one or more of which may be
waived by it:
12.1 PURCHASE PRICE. Seller Owner Participant shall have
received payment of the Purchase Price.
12.2 REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of Buyer contained in this Agreement shall be
true in all material respects on and as of the Closing Date with the same force
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and effect as though made on and as of the Closing Date. Buyer shall have
performed and complied with all material covenants and agreements required by
this Agreement to be performed or complied with by it on or prior to the Closing
Date.
12.3 DELIVERY OF DOCUMENTS.
(a) Seller shall have received evidence that each of Buyer
Owner Participant and Buyer Owner Trustee has taken all action necessary to
authorize the execution and delivery of the Operative Documents to which it is a
party and the performance of its obligations thereunder, together with such
other documents as Seller shall reasonably request; and
(b) The N806US and N807US Lease Termination Agreements shall
have been duly executed and delivered to Seller Owner Participant.
12.4 NO LITIGATION. No action, suits or proceedings or any
governmental action shall have been instituted or be threatened before any court
or before or by any governmental agency, nor shall any order, judgment or decree
have been issued or proposed to be issued by any court or governmental agency,
and not withdrawn or revoked, as of the Closing Date, questioning the validity
or legality of this Agreement or the other Operative Documents to which Buyer is
a party or the transactions contemplated hereby or thereby or the ability of the
parties hereto to consummate the transactions contemplated hereby or thereby.
13. DISCLAIMER OF WARRANTIES BY SELLER. EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT AND THE WARRANTY BILLS OF SALE, THE AIRCRAFT PACKAGE IS SOLD
ON AN "AS IS WHERE IS" BASIS AND SELLER OWNER TRUSTEE AND SELLER OWNER
PARTICIPANT (AND THEIR RESPECTIVE SERVANTS OR AGENTS) HAVE NOT MADE AND SHALL
NOT BE DEEMED TO HAVE MADE AND HEREBY DISCLAIM ANY REPRESENTATION, WARRANTY,
CONDITION, GUARANTEE, UNDERTAKING, COVENANT OR OTHER OBLIGATION, EXPRESS OR
IMPLIED, WHICH IS NOT EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE WARRANTY
BILLS OF SALE, AS TO THE TITLE, VALUE, CONDITION, DESIGN, OPERATION,
AIRWORTHINESS, QUALITY, COMPLIANCE WITH ANY DESCRIPTION, PERFORMANCE,
MERCHANTABILITY OR FITNESS FOR USE OF THE AIRCRAFT PACKAGE OR ANY PART THEREOF,
OR ANY OTHER REPRESENTATION, WARRANTY, CONDITION, GUARANTEE, UNDERTAKING,
COVENANT OR OTHER OBLIGATION WHATSOEVER OTHER THAN THOSE EXPRESSLY SET FORTH IN
THIS AGREEMENT OR THE WARRANTY BILLS OF SALE, WITH RESPECT TO THE AIRCRAFT
PACKAGE OR ANY PART THEREOF.
14. BROKERS AND OTHER THIRD PARTIES.
14.1 NO BROKERS. Each of the parties hereby 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
establishment or operation of this Agreement, to any Person (other than fees
payable by each party to its legal advisers).
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14.2 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 Operative Documents or the
Aircraft Package, if such claim, suit, damage, cost or expense arises out of any
breach by the indemnifying party, its employees or agents of Section 14.1.
15. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made herein, and the agreements and indemnities set forth in this
Agreement shall survive the Closing.
16. INDEMNITY. Except as expressly provided in this Agreement and the
Warranty Bills of Sale, Seller shall have no liability whatsoever relating to
the Aircraft after the Closing Date. Buyer shall indemnify Seller Owner
Participant and Seller Owner Trustee (in its individual and trustee capacities)
and each of their subsidiaries, shareholders, officers, employees and agents in
full on demand in respect of all Losses suffered or incurred by any such Person
(regardless of when the same are suffered or incurred) arising out of or
connected in any way with:
(a) 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 the Aircraft, or any loss of or damage to the Aircraft, or
otherwise in connection with the 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 and regardless of when the same arises or occurs, or
whether it arises out of or is attributable to any act or omission, negligent or
otherwise of Seller Owner Trustee or Seller Owner Participant; or
(b) any design, article or material in the 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;
Provided that the Indemnities contained in this Section 16 shall not extend to
Losses of any Person:
(i) to the extent that such Losses are caused by the willful
misconduct or gross negligence of such Person or any of its employees, servants
or agents;
(ii) to the extent that such Losses are the result of failure
by such Person to comply with any of its express obligations under this
Agreement or any representation or warranty given by such Person not being true
and correct.
17. LIABILITY INSURANCE. At no cost or expense to Seller, Buyer shall
maintain or procure that comprehensive legal liability insurance is maintained
in respect of the Aircraft, including cover for the indemnity in SECTION 16,
naming Indemnitees as additional assureds, during the period commencing on the
Closing Date and ending on the second anniversary of the Closing Date. The
amount of cover shall be not less than $100,000,000 for each and every loss
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(which is an aggregate limit in respect of products liability), or such other
amount as is the normal amount of airline liability insurance for the time being
maintained by prudent airlines in respect of aircraft of the same model and
series as the Aircraft engaged in the same operations on the same or similar
routes as the Aircraft. Buyer will provide or cause to be provided to the
Indemnitees a certificate of insurance so naming Seller as additional insured.
18. FURTHER ASSURANCES. Seller Owner Participant, Seller Owner Trustee,
Buyer Owner Participant and Buyer Owner Trustee each agree to execute,
acknowledge, deliver, file and record, or cause to be executed, acknowledged,
delivered, filed and recorded, such further documents or other papers, and to do
all such things and acts, as any other party may reasonably request in order to
carry out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
19. EXPENSES. Whether or not Closing is consummated, each party shall
pay its own costs and expenses relating to the transactions contemplated hereby.
20. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid. Any such notice shall be effective when received (provided that
facsimile transmissions shall be effective when acknowledged by the recipient)
and shall be addressed as follows:
If to Buyer Owner Participant, to:
Jetran International, Ltd.
12400 Hwy 281, North, Suite 150
San Antonio, Texas 78216
Attention: Mr. M.D. Jaffe, Jr.
Facsimile: (210) 495-7799
If to Buyer Owner Trustee, to:
Alameda Corporation
c/o Jetran International, Ltd.
12400 Hwy 281, North, Suite 150
San Antonio, Texas 78216
Attention: Ms. Patricia Pozza
Facsimile: (210) 495-7799
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If to Seller Owner Participant, to:
Airlease Ltd.
555 California Street, 4th Floor
San Francisco, California 94104
Attention: Jad Mansour
Facsimile: (415) 765-1817
with a copy to:
White & Case LLP
633 West Fifth Street
Los Angeles, CA 90071
Attention: Rick Smith
Facsimile: (213) 687-0758
If to Seller Owner Trustee, to:
Wachovia Bank, National Association
One Rodney Square
920 King Street, Suite 102
Wilmington, DE 19801
Attention: Jason Concavage
Facsimile: (302) 888-7544
Any party, by notice given in accordance with this Section 20 to the other
party, may designate another address or person for receipt of notices hereunder.
21. WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES; PRESERVATION OF
REMEDIES. This Agreement may be amended, superseded, modified, supplemented or
terminated, and the terms hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof. No waiver on the part of
any party of any such right, power or privilege, nor any single or partial
exercise of any such right, power or privilege, shall preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
The rights and remedies herein provided are cumulative and are not exclusive of
any rights or remedies that any party may otherwise have at law or in equity.
22. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California both substantive and
remedial (without regard to any conflict of laws rule which might result in the
application of the laws of any other jurisdiction).
23. JURISDICTION, VENUE, SERVICE OF PROCESS. Each party consents to the
non-exclusive jurisdiction of the state courts of the State of California
located in Los Angeles and the federal court of the United States in the Central
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District of California located in Los Angeles and each party irrevocably waives
any objection to such courts as the forum to hear and determine any suit, action
or proceeding, and to settle any disputes, which may arise out of this Agreement
or any of the Operative Documents and agrees not to claim that such court is not
a convenient or appropriate forum whether on the grounds of venue or forum non
conveniens or otherwise. Notice, including without limitation, any summons,
complaint, petition, motion or application, may be served directly upon any
party by mail to the address given for such party in SECTION 20. Should a
dispute arise in connection with this Agreement or any other Operative Document,
the prevailing party shall be entitled to reimbursement of reasonable legal fees
in connection with any litigation occurring as a result of that dispute.
24. ENTIRE AGREEMENT. This Agreement, together with the other Operative
Documents, constitutes the complete agreement of the parties hereto regarding
the subject matter hereof and supersedes all prior understandings (written or
oral), communications and agreements provided that, after Closing, this
Agreement alone shall constitute the complete agreement of the parties hereto,
superseding all such prior understandings, communications and agreements.
25. COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
26. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
27. INSTRUCTION TO OWNER TRUSTEES. Seller Owner Participant hereby
instructs Seller Owner Trustee to execute and deliver this Agreement and any
other Operative Document to which Seller Owner Trustee is a party. Buyer Owner
Participant hereby instructs Buyer Owner Trustee to execute and deliver this
Agreement and any other Operative Document to which Seller Owner Trustee is a
party.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the date first above written.
AIRLEASE LTD., as Seller Owner Participant
By: /s/ JAD G. MANSOUR
------------------------------------------------
Name: Jad G. Mansour
Title: Treasurer
WACHOVIA BANK, NATIONAL ASSOCIATION, as Seller Owner
Trustee
By: /s/ STEVEN A. FINKLEA
------------------------------------------------
Name: Steven A. Finklea
Title: Vice President
JETRAN INTERNATIONAL, LTD.,as Buyer Owner Participant
By: Jetran, LLC
Its: General Partner
By: /s/ M.D. JAFFE, JR.
------------------------------------------------
Name: M.D. Jaffe, Jr.
Title: CEO
ALAMEDA CORPORATION, as Buyer Owner Trustee
By: /s/ M.T. ARNOLD
------------------------------------------------
Name: M.T. Arnold
Title: President