EXHIBIT 2.1
Contract No.
AIRCRAFT SALES AGREEMENT
THIS AIRCRAFT SALES AGREEMENT ("Agreement") is made and
entered into as of the ___ day of May, 2004, by and among FEDERAL EXPRESS
CORPORATION, a Delaware corporation ("Buyer"), AIRLEASE LTD., a California
limited partnership ("Seller Owner Participant") and WELLS FARGO BANK NORTHWEST,
N.A., a national banking association, not in its individual capacity but solely
as owner trustee ("Seller Owner Trustee") under that certain Trust Agreement
dated as of July 27, 1993 with Seller Owner Participant (the "Seller Trust
Agreement").
RECITALS
1. Buyer entered into an Aircraft Lease Agreement for one (1) Boeing
727-2D4 aircraft dated as of April 15, 1993 with Trust Company for USL, Inc.
(the "Original Owner Trustee"), not in its individual capacity but solely as
trustee (the "Owner Trustee") (as amended, supplemented and modified from time
to time, the "Lease") pursuant to that certain Trust Agreement dated as of
November 10, 1987 with United States Leasing International, Inc. (the "Original
Owner Participant").
2. The Original Owner Participant assigned all of its rights, title and
interest in and to the Aircraft to Seller Owner Participant pursuant to that
certain Separation of Joint Interests in Leased Aircraft and Assignment and
Assumption Agreement dated as of September 29, 1993.
3. The Original Owner Trustee assigned all of its rights, title and
interest in and to the Aircraft to Seller Owner Trustee pursuant to that certain
Resignation of Trustee; Appointment of Successor Trustee; and Assignment and
Assumption Agreement (N288FE) dated as of December 11, 1996.
4. Seller Owner Participant and Seller Owner Trustee (together, the
"Seller") wish to sell the Aircraft, Engines and Aircraft Documentation (as
defined herein and, with respect to the Aircraft and Engines, as more
particularly described in Exhibit A attached hereto) to Buyer pursuant to the
terms and subject to the conditions set forth in this Agreement.
5. Buyer desires to purchase the Aircraft and Engines from Seller
pursuant to the terms and subject to the conditions set forth in this Agreement.
FOR AND IN CONSIDERATION of the mutual covenants contained in this
Agreement and other good and valuable consideration, Buyer and Seller (the
"Parties") agree as follows:
ARTICLE 1
DEFINITIONS
PRIMARY DEFINITIONS. In addition to words and terms elsewhere defined
in this Agreement, the following words and terms shall have the meanings set
forth below:
AIRCRAFT. One (1) used Boeing 727-2D4 airframe bearing the
Manufacturer's Serial Number 21850 and U.S. Registration Number N288FE (formerly
N362PA) as more particularly described in Exhibit A (the "Airframe"), the
Engines and the Aircraft Documentation and all parts, components, equipment and
accessories used in connection with the Airframes, as more particularly
described in Exhibit A.
AIRCRAFT ACCEPTANCE RECEIPT. An acceptance receipt, in the form of
Exhibit B attached to this Agreement, executed by Buyer and delivered to Seller
concurrently with the Delivery of the Aircraft.
AIRCRAFT DOCUMENTATION. The Aircraft Documentation as more particularly
described in Article 5.
AIRWORTHY. The condition of the Aircraft at the time of Delivery which
condition satisfies all the requirements for the issuance of an FAA Certificate
of Airworthiness and compliance with the following: (i) the Boeing 727 Type
Design Data Certificate, including all applicable supplemental type certificates
which have been incorporated on the Aircraft; (ii) all applicable FAA
airworthiness directives and data substantiating the status and method of
compliance for each such airworthiness directive; and, (iii) the Aircraft
records requirements of FAR 121.380 and FAR 121.380a. Additionally, all Aircraft
structure, systems and components will be functioning in accordance with their
intended use per the Aircraft Maintenance Manual.
BUSINESS DAY. Any day other than a Saturday, Sunday or other day on
which banking institutions in New York, New York, Memphis, Tennessee or San
Francisco, California are authorized or required by law to be closed.
DELIVERY. Delivery of the Aircraft shall occur when the following
concurrent events performed in accordance with this Agreement shall have
occurred: (a) tender of the Aircraft by Seller to Buyer, (b) acceptance by Buyer
of the Aircraft, as evidenced by Buyer's execution of the Aircraft Acceptance
Receipt, (c) Payment by Buyer of the Purchase Price and receipt by Seller
thereof; and (d) release of the FAA Bill of Sale and Warranty Bill of Sale and
consequent transfer of title of the Aircraft.
DELIVERY DATE. The date the Aircraft is to be delivered as set forth in
Section 3.01.
ENGINE(s). Individually or collectively, the three (3) Pratt & Whitney
Model JT8D-15A engines installed upon the Aircraft bearing Engine Manufacturer's
Serial Numbers 700-267, 700-360 and 708-902 and as more particularly described
in Exhibit A.
EXCUSABLE DELAY. Excusable Delay as more particularly described in
Section 7.01.
FAA. The United States Federal Aviation Administration.
FAA APPLICATION FOR REGISTRATION. FAA Application for Registration as
more particularly described in Section 3.03.
FAA BILL OF SALE. A Federal Aviation Administration Bill of Sale (AC
Form 8050-2) conveying title to the Aircraft to Buyer, in the form of Exhibit C.
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PARTICIPATION AGREEMENT. The Participation Agreement dated as of April
15, 1993 among Buyer, Seller Owner Participant, Seller Owner Trustee
(predecessor in interest to Trust Company for USL, Inc.) and United States
Leasing International Inc. (predecessor in interest to Seller Owner
Participant), as amended, supplemented and modified from time to time.
PERSON. 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. The price for each of the Aircraft as more particularly
described in Exhibit A.
TRANSACTION DOCUMENTS. This Agreement, the Aircraft Acceptance Receipt,
the FAA Bill of Sale, the Warranty Bill of Sale, the FAA Lease Termination and
the FAA Application for Registration.
WARRANTY BILL OF SALE. A warranty bill of sale, conveying title to the
Aircraft to Buyer, in the form of Exhibit D.
ARTICLE 2
PURCHASE OF AIRCRAFT
SECTION 2.01. PURCHASE OF AIRCRAFT. Seller agrees to sell to Buyer, and
Buyer agrees to purchase from Seller, the Aircraft, pursuant to the terms and
subject to the conditions of this Agreement.
SECTION 2.02. PAYMENT OF PURCHASE PRICE. All monies payable by Buyer
under this Agreement shall be paid in accordance with Article 6.
ARTICLE 3
AIRCRAFT DELIVERY, TITLE, RISK OF LOSS
SECTION 3.01. PLACE OF ACCEPTANCE AND DELIVERY. Acceptance and Delivery
of the Aircraft shall be at Colorado Springs, Colorado or such other location as
is mutually acceptable to Seller and Buyer in such manner as provided in Section
6.02(c), or as otherwise agreed.
SECTION 3.02. RISK AND TRANSFER. All right, title and interest in and
to the Aircraft and the risk of loss or destruction of, or damage to, the
Aircraft and all other risks relating thereto shall pass to Buyer upon the
delivery (and release) of the Warranty Bill of Sale to Buyer.
SECTION 3.03. DELIVERY PROCEDURE. At the time of Delivery of the
Aircraft:
(i) Buyer shall execute and deliver to Seller the
Aircraft Acceptance Receipt;
(ii) Buyer shall pay the Purchase Price as follows: (y) to
Seller Owner Participant, $_____________ to Bank of
America, NT&SA, ABA#: 121000358, Account No.:
3
12331-34432, Account of: Airlease Ltd, and (z) to
People's Benefit Life Insurance Company, $_________
to Bank of New York, ABA# 021000018, IOC566, FC
PBL/Private Account.
(iii) Seller shall deliver to Buyer the Warranty Bill of
Sale; and
(iv) Concurrently with the delivery of the Warranty Bill
of Sale described in Clause (iii) above, (a) Buyer
and Seller shall release the FAA Lease Termination
(as defined in Section 3.04) which will have
previously been delivered to Buyer's FAA Special
Counsel in escrow to be filed and recorded with the
FAA Aircraft Registry in Oklahoma City, Oklahoma, in
a manner acceptable to Buyer and Seller, (b) Seller
shall release to Buyer the FAA Bill of Sale executed
by Seller which will have previously been delivered
to Buyer's FAA Special Counsel in escrow to be filed
and recorded with the FAA Aircraft Registry in
Oklahoma City, Oklahoma, in a manner acceptable to
Buyer and (c) Buyer shall cause the white and green
copies of an Aircraft Registration Application on AC
Form 8050-1 (the "FAA Application for Registration")
describing the Aircraft and naming Buyer as applicant
to be filed and recorded with the FAA Aircraft
Registry in Oklahoma City, Oklahoma, in a manner
acceptable to Seller.
Notwithstanding the foregoing, the delivery and/or release by Seller of
any of the documentation described in this Section 3.03 is subject to (a) the
receipt by Seller Owner Participant of the Purchase Price and (b) the oral or
written release by one of Jad G. Mansour, Jeffrey S. Robinson or Sarin Tavlian,
on behalf of Seller, of the Warranty Bill of Sale, the FAA Bill of Sale, and
Seller's signatures to the FAA Lease Termination.
SECTION 3.04. TERMINATION OF LEASE. Concurrently with the Delivery of
the Aircraft by Seller to Buyer, the parties hereby agree that the Lease will
terminate in its entirety with no further obligation or penalty to Buyer or
Seller except as may be expressly set forth in the Lease. Buyer and Seller shall
be responsible for executing, and Seller shall be responsible for filing all
necessary documentation effectuating such termination including, without
limitation, the "FAA Lease Termination" in the form of Exhibit E.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. SELLER'S REPRESENTATIONS AND WARRANTIES. Each of Seller
Owner Participant and Seller Owner Trustee hereby represents and warrants to
Buyer that upon Delivery of the Aircraft:
(a) REPRESENTATION OF TITLE. Seller Owner Trustee owns legal title to
the Aircraft, free and clear of any and all Lessor Liens (as defined in the
Lease);
(b) AUTHORITY. Seller Owner Trustee has full power and lawful authority
to convey such ownership interest in the Aircraft to Buyer;
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(c) TITLE. upon execution, filing and recordation with the FAA of the
FAA Bill of Sale and delivery of the Warranty Bill of Sale to Buyer, Buyer shall
have received legal and equitable title to the Aircraft free and clear of any
and all Lessor Liens;
SECTION 4.02. LIMITATION OF WARRANTY. THE REPRESENTATIONS AND
WARRANTIES OF SELLER SET FORTH IN SECTION 4.01 ARE EXPRESSLY IN LIEU OF, AND
SELLER SHALL NOT BE DEEMED TO HAVE MADE, AND BUYER DISCLAIMS, ANY OTHER
REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTIES OF ANY KIND WHATSOEVER,
EXPRESS OR IMPLIED, CONCERNING THE AIRCRAFT, ANY PART OR COMPONENT, VALUE,
CONDITION, DESIGN, OPERATION, AIRWORTHINESS, QUALITY, INCLUDING, BUT NOT LIMITED
TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE. WITHOUT LIMITATION OF THE FOREGOING, IT IS EXPRESSLY AGREED THAT EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE AIRCRAFT SHALL BE SOLD HEREUNDER
ON A COMPLETELY AS IS AND WHERE IS BASIS. SELLER IS NOT A MANUFACTURER OR A
DEALER IN AIRCRAFT AND THE BUYER ACKNOWLEDGES AND CONFIRMS THE AIRCRAFT IS OF A
MAKE, SIZE, DESIGN AND CAPACITY DESIRED BY BUYER AND IS A USED AIRCRAFT AND
BUYER CONFIRMS THAT IT HAS NOT, IN ENTERING INTO THIS AGREEMENT, RELIED ON ANY
WARRANTY OR REPRESENTATION BY SELLER, EXPRESS OR IMPLIED, EXCEPT AS SET FORTH IN
THIS ARTICLE 4, WHETHER ARISING BY APPLICABLE LAW OR OTHERWISE IN REGARD TO THE
AIRCRAFT OR ANY PART THEREOF, AND THE BENEFIT OF ANY SUCH WARRANTY OR
REPRESENTATION BY SELLER, IS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVED BY
BUYER. BUYER WAIVES ANY AND ALL RIGHTS AND REMEDIES IT MAY HAVE AGAINST SELLER
RELATING TO ANY OTHER REPRESENTATIONS AND WARRANTIES MADE BY SELLER, WHETHER THE
REMEDIES ARISE BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR
LOSS OF USE, REVENUE OR PROFIT OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES. NO AGREEMENT ALTERING OR EXTENDING SELLER'S LIABILITY FOR
REPRESENTATIONS AND WARRANTIES SHALL BE BINDING UPON SELLER UNLESS IN WRITING
AND EXECUTED BY SELLER'S AND BUYER'S AUTHORIZED OFFICERS.
SECTION 4.03. BUYER'S REPRESENTATIONS.
(a) AUTHORIZATION AND ENFORCEABILITY. Buyer hereby represents and
warrants to Seller that: (i) Buyer is a corporation organized and in good
standing under the laws of the State of Delaware, (ii) Buyer is duly authorized
to execute and deliver this Agreement; and (iii) this Agreement constitutes the
legal, valid and binding obligation of Buyer enforceable against Buyer in
accordance with its terms.
(b) CONSENTS. The acquisition of the Aircraft by Buyer, the execution
and delivery of any Transaction Document to which Buyer 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 which will not have been
obtained on or before Delivery.
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(c) 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 Delaware is required with
respect to the execution, delivery or performance by Buyer of this Agreement or
the other Transaction Documents to which it is a party, or the consummation by
Buyer of any of the transactions on its part contemplated hereby or thereby.
ARTICLE 5
TECHNICAL DATA AND DOCUMENTS.
The Aircraft will be delivered with all historical engineering,
operational, maintenance and repair data for the Aircraft in Seller's
possession, and all other such data and documentation in Seller's possession
(the "Aircraft Documentation"). The Aircraft will be delivered with all
technical documentation required by FAA regulations in Seller's possession and
any other existing documentation related to the Aircraft in Seller's possession.
ARTICLE 6
PAYMENT, TAXES
SECTION 6.01. METHOD OF PAYMENT. Except as otherwise provided in this
Agreement, the payments to be made by Buyer pursuant to this Agreement shall be
made by wire transfer in immediately available United States funds, such
payments to be deposited on the dates such payments are due in the amounts and
to the accounts specified in Section 3.03(ii).
SECTION 6.02. PAYMENT OF TAXES BY BUYER. (a) The Purchase Price of the
Aircraft does not include the amount of any sales, value added, use, withholding
or excise taxes whatsoever. Any and all taxes, excises, duties and assessments
whatsoever (except taxes levied or assessed against Seller Owner Participant
based upon gross receipts or net income with respect to the sale of the
Aircraft) arising out of the sale or Delivery of the Aircraft, or the ownership,
possession, condition, maintenance, use, operation or disposition of the
Aircraft after Delivery, in any manner levied, assessed or imposed by any
government or subdivision or agency thereof having jurisdiction, shall be the
sole responsibility and liability of Buyer.
(b) Buyer shall promptly pay and discharge when due, unless the
validity or application thereof is being contested in good faith, any and all
taxes, excises, duties and assessments, together with interest and penalties
thereon, if any, the responsibility and liability for which is assumed by Buyer
pursuant to the provisions of Section 6.02(a) unless any such tax, excise, duty
or assessment is levied, assessed or imposed upon Seller Owner Participant, in
which case Seller Owner Participant shall promptly give Buyer notice of such
levy, assessment or imposition, whereupon Buyer shall promptly pay and discharge
the same, but upon the written request and at the expense (paid in advance) of
Buyer, Seller Owner Participant shall reasonably assist Buyer in contesting the
validity or application thereof. In the event Seller Owner Participant shall
receive a refund of all or any part of any such tax, excise, duty or assessment
paid by Buyer (including a refund of interest and penalties, if any, in
connection therewith), the amount of such refund shall promptly be remitted to
Buyer by Seller Owner Participant, less any expenses of Seller Owner Participant
associated with contesting the validity or application thereof, not previously
paid by Buyer to Seller Owner Participant.
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(c) In the event the Aircraft is not Delivered at Colorado Springs,
Colorado pursuant to Section 3.01, then Seller agrees to use its commercially
reasonable efforts to cause the Aircraft to be Delivered at such other location
reasonably acceptable to Buyer that does not impose a sales, value added tax,
use or other transfer tax upon Buyer in connection with the purchase and sale of
the Aircraft.
ARTICLE 7
EXCUSABLE DELAY, CANCELLATION,
TOTAL LOSS OR MATERIAL DAMAGE
SECTION 7.01. EXCUSABLE DELAY. (a) Neither party shall be responsible
to the other party for any excusable delay ("Excusable Delay") in the
performance of its respective duties under this Agreement. An Excusable Delay
shall be deemed to have occurred if a party's delay in performance is due to
causes beyond its respective reasonable control and not occasioned by its
respective intentional acts or negligence, including, but not limited to, acts
of God, partial or complete destruction of the Aircraft, court actions and
orders, acts of public enemies, orders of any kind of the government of the
United States, or any state or local officials, or any civil or military
authority, insurrections, riots, earthquake, fire, storm, restraint of
government and people or other similar acts or occurrences. Any delay due to the
lack of sufficient funds or obtainable financing by Buyer shall not be an
Excusable Delay.
(b) Upon the occurrence of an Excusable Delay, this Agreement shall
remain in full force and effect during the period of such Excusable Delay so
long as the same does not extend beyond sixty (60) days, whether or not
consecutive, and the definition of "Delivery Date" shall be modified
accordingly. If any Excusable Delay lasts for more than sixty (60) days, whether
or not consecutive, either Seller or Buyer shall have the right to cancel this
Agreement with respect to the sale of the Aircraft and neither party hereunder
shall have any liability whatsoever to the other with respect to the purchase
and sale of the Aircraft.
SECTION 7.02. TOTAL LOSS OR MATERIAL DAMAGE. In the event that prior to
the Delivery of the Aircraft hereunder, a total loss of, or material damage to,
the Aircraft shall occur, Buyer shall have the right to provide written notice
to Seller of its intent to cancel the purchase and sale of the Aircraft
hereunder; and, in such case neither of the Parties shall have any further
obligation or liability to the other Party hereunder with respect to purchase
and sale of the Aircraft. For purposes of this Agreement, "material" damage
shall be defined as any damage of $100,000 or more to the Aircraft that cannot
reasonably be corrected within thirty (30) days of the date of such damage and
that was not caused by any negligent act or omission of Buyer.
ARTICLE 8
INDEMNIFICATION
SECTION 8.01. Each of Buyer and Seller agrees to indemnify, defend and
hold harmless the other party, its affiliates, successors, assigns, officers,
agents, directors and employees from and against any and all liabilities,
damages, losses, expenses, demands, claims, suits, or judgments, including
reasonable attorneys' fees, arising out of (i) the breach of warranties set
forth in Article 4, or (ii) in the case of Seller, from any claim adverse to
Buyer's title to the Aircraft by any party claiming by or through Seller.
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SECTION 8.02. Buyer and Seller agree that the indemnification provision
of Section 4(b) of that certain Participation Agreement shall survive the
termination and Delivery of the Aircraft only to the extent of the express terms
of Section 4(b) notwithstanding any other provision of the operative documents
of the Lease and this Agreement.
ARTICLE 9
CONDITIONS
SECTION 9.01. CONDITIONS TO BUYER'S OBLIGATIONS.
(a) LEGAL OPINION. The purchase by Buyer of the Aircraft is subject to
the condition precedent that at the time of Delivery, Buyer's special FAA
counsel, shall have confirmed to Buyer that such counsel is forthwith furnishing
Buyer an opinion of said counsel addressed to Buyer to the effect that: (i) the
FAA Bill of Sale and FAA Application for Registration with respect to the
Aircraft have been duly filed with the FAA; (ii) all instruments necessary to
cause the FAA to issue to Buyer an FAA Certificate of Aircraft Registration in
the name of Buyer covering the Aircraft have been duly filed with the FAA; and
(iii) legal title to the Aircraft is vested in Buyer, and the Aircraft
(including its Engines) is free and clear of all Lessor Liens. Buyer shall have
no obligation to wire the Purchase Price unless and until it has received such
confirmation.
(b) DELIVERY OF DOCUMENTS.
(i) Buyer shall have received, in form and substance
satisfactory to Buyer 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
Transaction Documents to which it is a party and the
performance of its obligations thereunder;
(ii) The Warranty Bill of Sale and the Aircraft Acceptance
Receipt shall have been duly executed and delivered
to Buyer; and
(iii) The FAA Bill of Sale and FAA Lease Termination shall
have been duly executed and sent to Buyer's FAA
Special Counsel.
SECTION 9.02. CONDITION TO SELLER'S OBLIGATIONS.
(a) PURCHASE PRICE. The sale by Seller of the Aircraft is subject to
the condition precedent that Seller Owner Participant shall have received
payment of the Purchase Price.
(b) DELIVERY OF DOCUMENTS.
(i) Seller shall have received evidence that each of
Buyer has taken all action necessary to authorize the
execution and delivery of the Transaction Documents
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to which it is a party and the performance of its
obligations thereunder, together with such other
documents as Seller shall reasonably request;
(ii) The Aircraft Acceptance Receipt shall have been duly
executed and delivered to Seller Owner Participant;
and
(iii) The FAA Lease Termination and FAA Application for
Registration shall have been duly executed and sent
to Buyer's FAA Special Counsel.
ARTICLE 10
INTENTIIONALLY DELETED
ARTICLE 11
INSURANCE
At no cost or expense to Seller, Buyer shall maintain or procure, for a
period not to exceed twenty four (24) months from the Delivery of the Aircraft
(the "Insurance Period"), that comprehensive airline liability (including,
without limitation, contractual, bodily injury and property damage liability)
insurance (exclusive of manufacturer's product liability insurance) with respect
to the Aircraft, (A) in an amount not less than the greater of (1) the amounts
of comprehensive airline liability insurance from time to time applicable to
aircraft owned or leased, and operated by Buyer of the same type as the Aircraft
and (2) an amount per occurrence not less than the amount per occurrence set
forth in the Certificate of Insurance of Aircraft Hull and Liability Insurance
delivered by Buyer' insurance broker to Seller on the Delivery Date, (B) of the
type and covering the same risks as from time to time applicable to aircraft
owned or leased and operated by Buyer of the same type as the Aircraft and (C)
which is maintained in effect with insurers of recognized reputation and
responsibility. Buyer shall also maintain, or cause to be maintained cargo legal
liability insurance in an amount and on such terms as maintained for similar
aircraft owned or leased and operated by Buyer. Coverage shall also be for the
indemnity in Section 8.02, naming Seller Owner Participant as additional
insureds, during the Insurance Period. Buyer will provide or cause to be
provided to Seller Owner Participant a certificate of insurance so naming Seller
as additional insured through the Insurance Period.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. NOTICES. Unless otherwise specified in writing by the
affected Party, all notices, approvals, requests, consents and other
communications given pursuant to this Agreement shall be in writing and shall be
deemed effective when received if hand-delivered, sent by facsimile, sent by
Federal Express or similar priority service or sent by certified or registered
mail, addressed as follows:
If to Seller: Airlease Ltd.
CA5-705-04-03
c/o Bank of America Leasing & Capital
Attention: Jad G. Mansour
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Telephone No. (415) 765-1848
Facsimile No. (415) 765-1817
With a copy to: White & Case, LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071
Attention: Richard K. Smith
Telephone No. (213) 620-7700
Facsimile No. (213) 687-0758
If to Buyer: FedEx Corporation
Corporate Finance
942 S. Shady Grove Road
Memphis, Tennessee 38120
Attention: Managing Director
Telephone No. (901) 818-7045
Facsimile No. (901) 818-7246
With a copy to: Federal Express Corporation
Legal Department
3620 Hacks Cross Road
Memphis, Tennessee 38125
Attention: Managing Director,
Business Transactions Group
Telephone No. (901) 434-8440
Facsimile No. (901) 434-7831
SECTION 12.02. EXHIBITS. All Exhibits described in this Agreement shall
be deemed to be incorporated and made a part of this Agreement, except that if
there is any inconsistency between this Agreement and the provisions of any
Exhibit, the provisions of this Agreement shall control.
SECTION 12.03. ASSIGNMENTS. This Agreement, and Seller's rights and
obligations hereunder, shall not be assignable or delegable by Seller without
the prior written consent of Buyer, which consent may be withheld in Buyer's
sole discretion. Seller acknowledges and agrees that Buyer, one of Buyer's
subsidiaries or a financial institution or other entity may be designated by
Buyer as the contracting party with Seller hereunder and that this Agreement may
be assigned by Buyer to any of such said entities without restriction and upon
written notice to Seller; provided, however that Buyer shall, to the extent such
assignee has failed to perform hereunder, continue to be liable as Buyer
hereunder notwithstanding such assignment.
SECTION 12.04. BINDING EFFECT. This Agreement and the rights and
obligations of the Parties hereunder, shall be binding upon and inure to the
benefit of each of the Parties, their respective permitted successors, assigns
and legal representatives.
SECTION 12.05. CAPTIONS. All Article and Section headings used in this
Agreement are for convenience only and shall not in any manner be deemed to
limit or restrict the context of the Article or Section to which they relate.
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SECTION 12.06. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
regard to or application of any conflict of law principles.
SECTION 12.07. ENTIRE AGREEMENT. This Agreement shall constitute the
entire agreement between the Parties with respect to the transaction
contemplated herein and shall not in any manner be supplemented, amended or
modified except by a written instrument executed on behalf of each of the
Parties by their duly authorized representatives.
SECTION 12.08. EXPENSES. Each of the Parties hereto shall be
responsible for its own costs and expenses incurred in connection with the
negotiation, preparation and execution of this Agreement.
SECTION 12.09. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed shall be deemed to be an original
and which, taken together, shall constitute one and the same instrument.
SECTION 12.10. BROKERS' COMMISSIONS. Buyer and Seller represent to the
other that each respectively has negotiated this Agreement directly with the
other and that no brokers are entitled to a commission as a result of their
actions. Buyer and Seller respectively agree to indemnify and hold one another
harmless from and against all claims, demands, liabilities, damages, losses or
judgments which may be suffered by the other and which arise out of the actions
of or employment by the other with any agent or broker.
SECTION 12.11. INSTRUCTION TO OWNER TRUSTEE. Seller Owner Participant
hereby instructs Seller Owner Trustee to execute and deliver this Agreement and
any other Transaction Document to which Seller Owner Trustee is a party.
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IN WITNESS WHEREOF, the Parties do hereby execute this Agreement on the
day and year first above written.
FEDERAL EXPRESS CORPORATION
By:__________________________________________________
Title: Vice President
("Buyer")
AIRLEASE LTD.
By: _________________________________________________
Title:_______________________________________________
("Seller Owner Participant")
WELLS FARGO BANK NORTHWEST, N.A.,
As Owner Trustee
By:__________________________________________________
Title:_______________________________________________
("Seller Owner Trustee")
EXHIBIT A
to that certain
Aircraft Sales Agreement
among
Federal Express Corporation
("Buyer"),
Wells Fargo Bank Northwest, N.A.
("Seller Owner Trustee")
and
Airlease Ltd.
("Seller Owner Participant")
Dated as of May _____, 2004
________________________________________________________________________________
AIRCRAFT DESCRIPTION
AIRCRAFT DESCRIPTION:
One (1) used Boeing 727-2D4 airframe bearing the Manufacturer's Serial Number
21850 and U.S. Registration Number N288FE (formerly N362PA) together with three
(3) Pratt & Whitney JT8D-15A aircraft engines installed thereon bearing Engine
Manufacturer's Serial Numbers 700-267, 700-360 and 708-902 together with all
parts, components, equipment and accessories used in connection with the
Airframes and Engines.
AIRCRAFT PURCHASE PRICE:
Two Million Five Hundred Forty Four Thousand Eight Hundred Twelve and 39/100 US
Dollars (US$2,544,812.39) in the aggregate.
Any equipment in Seller's possession, loose or otherwise, required to operate
the Aircraft in accordance with Seller's FAA Part 121 operating certificate will
be included with the Delivery of the Aircraft.
A-1
EXHIBIT B
to that certain
Aircraft Sales Agreement
among
Federal Express Corporation
("Buyer"),
Wells Fargo Bank Northwest, N.A.
("Seller Owner Trustee")
and
Airlease Ltd.
("Seller Owner Participant")
Dated as of May _____, 2004
________________________________________________________________________________
AIRCRAFT AND AIRCRAFT DOCUMENTATION
ACCEPTANCE RECEIPT
FEDERAL EXPRESS CORPORATION ("Buyer") hereby accepts and acknowledges
receipt from AIRLEASE LTD. ("Seller Owner Participant") and WELLS FARGO BANK
NORTHWEST, N.A., as Owner Trustee under Trust Agreement dated as of July 27,
1993 ("Seller Owner Trustee"), in accordance with the terms and conditions of
the Aircraft Sales Agreement dated as of May , 2004, among the parties hereto,
of one (1) Boeing 727-2D4 aircraft;
Registration Number: N288FE (formerly N362FE);
Manufacturer's Serial Number: 21850;
Each with three (3) Pratt & Whitney JT8D-15A aircraft engines installed thereon
bearing Engine Manufacturer's Serial Numbers 700-267, 700-360 and 708-902;
B-1
together with the Aircraft Documentation, in _______, on ___, ____, at
____/a.m./ /p.m./ local time.
FEDERAL EXPRESS CORPORATION
By:__________________________________________________
Title:_______________________________________________
("Buyer")
AIRLEASE LTD.
By: _________________________________________________
Title:_______________________________________________
("Seller Owner Participant")
WELLS FARGO BANK NORTHWEST, N.A.,
As Owner Trustee
By: _________________________________________________
Title:_______________________________________________
("Seller Owner Trustee")
B-2
EXHIBIT C
to that certain
Aircraft Sales Agreement
among
Federal Express Corporation
("Buyer"),
Wells Fargo Bank Northwest, N.A.
("Seller Owner Trustee")
and
Airlease Ltd.
("Seller Owner Participant")
Dated as of May _____, 2004
________________________________________________________________________________
FAA AIRCRAFT BILL OF SALE
(See attached)
C-1
EXHIBIT D
to that certain
Aircraft Sales Agreement
among
Federal Express Corporation
("Buyer"),
Wells Fargo Bank Northwest, N.A.
("Seller Owner Trustee")
and
Airlease Ltd.
("Seller Owner Participant")
Dated as of May _____, 2004
________________________________________________________________________________
WARRANTY BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS:
THAT the undersigned, WELLS FARGO BANK NORTHWEST, N.A., as Owner
Trustee under Trust Agreement dated as of July 27, 1993 ("Seller Owner
Trustee"), has the power and right to convey the legal and beneficial title to
that certain Boeing 727-2D4 aircraft bearing Registration No. N288FE (formerly
N362FE) and Manufacturer's Serial Number 21850, together with the three (3)
Pratt & Whitney JT8D-15A aircraft engines installed thereon, bearing Engine
Manufacturer's Serial Numbers 700-267, 700-360 and 708-902, together with all
fixed equipment, parts, components and accessories installed on said aircraft
and engines.
THAT for and in consideration of the sum of Ten Dollars ($10) and other
valuable consideration, Seller Owner Trustee does, this day of , ____ , grant,
convey, transfer, bargain and sell, deliver and set over all of its rights,
title and interests to and in the above described aircraft, engines, fixed
equipment, parts, components and accessories unto FEDERAL EXPRESS CORPORATION, a
Delaware corporation ("Buyer").
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The undersigned hereby warrants to Buyer, its successors and assigns,
that there is hereby conveyed to Buyer title to the aforesaid aircraft, engines,
fixed equipment, parts, components and accessories free and clear of all Lessor
Liens, and that it shall warrant and defend such title forever against all
claims and demands whatsoever; and that this bill of sale is made and delivered
pursuant to the provisions of the Aircraft Sales Agreement among Buyer, Seller
Owner Trustee and Airlease Ltd., as Seller Owner Participant dated as of May ,
2004.
WELLS FARGO BANK NORTHWEST, N.A.,
As Owner Trustee
By:__________________________________________________
Title:_______________________________________________
("Seller Owner Trustee")
D-2
EXHIBIT E
to that certain
Aircraft Sales Agreement
among
Federal Express Corporation
("Buyer"),
Wells Fargo Bank Northwest, N.A.
("Seller Owner Trustee")
and
Airlease Ltd.
("Seller Owner Participant")
Dated as of May _____, 2004
________________________________________________________________________________
FAA LEASE TERMINATION
(see attached)
E-1