Exhibit 99.3
EXECUTION VERSION
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AIRCRAFT SALE & PURCHASE AGREEMENT
Dated as of 2 September 2005
JETRAN, LLC
as Seller
and
JETGLOBAL, LLC
as Purchaser
relating to up to twenty six (26) Boeing 737-200 Aircraft
manufacturer's serial number - As specified herein
engines manufacturer's serial numbers - As specified herein
CONTENTS
Clause Page
I. Interpretation 1
2. Representation~ And Warranties 1
3. Agreement To Sell Arid Purchase 1
4. Conditions Precedent 5
5. Purchase Price 6
6. Pre-Delivery Inspection 7
7. Delivery
8. Aircraft Condition & Warranties 8
9. Registration Fees 10
10. Indemnification 10
11. Further Provisions 12
12. Governing Law 14
13. Brokers And other Third Parties 14
14. Confidentiality 14
SCHEDULE 1 1
Part A Description of Aircraft 1
SCHEDULE 2 Aircraft Documents 1
SCHEDULE 3 Definitions 1
SCHEDULE 4 Conditions Precedent 1
Part A Seller Conditions Precedent 1
Part B Purchaser Conditions Precedent 2
ScHEDULE 5 Representations and Warranties 1
Part A Seller's Representations and Warranties 1
Part B Purchaser's Representations and Warranties 1
SCHEDULE 6 Aircraft ▇▇▇▇ of Sale 1
SCHEDULE 7 Form of Acceptance Certificate 1
THIS AGREEMENT is made as of 2 September 2005
AMONG:
JETRAN, LLC , a company organized in the State of Texas, United States of
America, with its address at ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ("Seller'); and
JETGLOBAL, LLC, a company organized in the State of Delaware, United States of
America, with its address at c/o BCI Aircraft Leasing, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser").
IT IS AGREED as follows.
I. INTERPRETATION
1.1 Definitions: Capitalized words and expressions are defined in Schedule 3.
1.2 Construction: Headings are to be ignored in construing this Agreement and
unless the contrary intention is stated, a reference to:
(a) each of "Seller", "Purchaser" or any other Person includes any
permitted successors and assignees;
(b) words importing the plural shall include the singular and vice versa;
(c) any document shall include that document as amended, novated, assigned
or supplernented;
(d) a Clause or a Schedule is to a clause of or a schedule to this
Agreement;
(e) any Law, or to any specified provision of any Law, is a reference to
such Law or provision as amended, substituted or re-enacted.
2. REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Purchaser in accordance with Part A of
Schedule 5 and each of Purchaser represents and warrants to Seller in
accordance with Part B of Schedule 5.
3. AGREEMENT TO SELL AND PURCHASE
3.1 Aircraft Status. On and subject to the terms of this Agreement:
(a) except as specified herein, the Aircraft will be sold by the Seller
and purchased by the Purchaser on the Delivery Date in an "AS IS",
"WHERE IS" condition; and
(b) Seller shall pass to Purchaser upon Delivery good and marketable title
to the Aircraft clear of any and all liens other than Permitted Liens.
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3.2 Delivery Documents: At Delivery of each Aircraft:
(a) If the Aircraft is owned by the Trust, Seller and Purchaser shall
deliver to FM Counsel a duly executed Assignment and Assumption
Agreement substantially in the form set forth in Schedule 9;
(b) If the Aircraft is not owned by the Trust,
(I) Seller shall deliver to Purchaser, the ▇▇▇▇ of Sale for the
Aircraft substantially in the form set forth in Schedule 6, duly
executed by Seller;
(ii) Seller shall deliver to FM Counsel an FAA ▇▇▇▇ of Sale for the
Aircraft duly executed by Seller;
(iii) Purchaser shall deliver to FM Counsel the FAA Form 8050-1
Application for Registration duly executed by Purchaser for
filing with the Air Authority;
(b) Purchaser shall deliver to Seller the Acceptance Certificate
substantially in the form set forth in Schedule 7, duly executed by
Purchaser; and
(c) Seller shall deliver such other documents as are reasonably necessary
to transfer to Purchaser good and marketable title, free and clear of
all liens in recordable form for the aircraft register of the
jurisdiction of the Air Authority, and Purchaser shall deliver such
other documents as are reasonably necessary to effect registration of
the Aircraft in Purchaser's (or the Trustee's) name on the aircraft
register of the jurisdiction of the Air Authority.
The documents referred to in this Clause 3.2 are defined for purposes of
this agreement as the "Delivery Documents".
3.3 Security Interests: The Aircraft shall upon Delivery be free and clear
of any Security Interests, liens other than Permitted Liens and claims
of third parties with respect to Aircraft that are sold rather than
transferred via a trust.
3.4 Passage of Title & Risk of Loss: Save as provided in the ▇▇▇▇ of Sale
or the Assignment and Assumption Agreement, title or Ownership Interest
to the Aircraft shall pass to Purchaser when the Delivery Documents are
delivered to Purchaser and the Seller, and filed with the FM as
applicable. Risk of loss, destruction of, or damage to the Aircraft
shall pass to Purchaser simultaneously with transfer of title.
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3.5 Damage or Fault before Delivery: If before Delivery the Aircraft suffers
material damage or a material fault occurs which (in either case) does
not constitute an Event of Loss, then:
(a) Seller shall promptly notify Purchaser of the details of such damage
or fault, (with proposals for repair where Seller reasonably considers
repairs can be carried out before the Final Delivery Date);
(b) Purchaser shall in light of Seller's notice, notify Seller whether
Purchaser is prepared to proceed subject to the damage or fault being
repaired prior to the Final Delivery Date. If Purchaser is prepared to
proceed on the basis of the repair, Seller shall procure the repair.
However if (i) the repair is not so completed and the Aircraft is not
delivered to Purchaser on or before the Final Delivery Date or (ii)
Purchaser reasonably declines to proceed on the basis of the repair of
the Aircraft and notifies Seller, then no party hereto shall have any
further obligation or liability to the other under this Agreement in
respect of the Aircraft. In the event Purchaser is willing to proceed
with the Purchase after repair of the Aircraft, then Seller shall
proceed with such repairs and the parties hereto shall consummate this
Agreement with respect to the repaired Aircraft.
3.6 Event of Loss Prior to Closing.
(a) Event of Loss. In the event that an Aircraft suffers an Event of Loss
prior to the Closing with respect to such Aircraft, then, with effect from
the date of such Event of Loss:
(i) this Agreement shall automatically terminate with respect to the
Aircraft suffering such Event of Loss, and the Cash Purchase Price shall be
recalculated to deduct the Allocated Purchase Price with respect to such
Aircraft as set forth on Schedule 6 hereto;
(ii) Purchaser shall have no further obligation or liability to the
applicable Seller with respect to such Aircraft (or the Ownership Interest
relating to such Aircraft) under this Agreement,
(iii) Seller shall not have any further obligation or liability to
Purchaser with respect to such Aircraft (or the Ownership Interest relating
to such Aircraft) other than to refund to Purchaser the portion of the
Deposit allocable to such Aircraft as set forth on Schedule 8 hereto; and
(iv) for the avoidance of doubt, each of the parties hereto expressly
acknowledges and agrees that, notwithstanding the termination of this
Agreement with respect to any particular Aircraft suffering an Event of
Loss as provided in this Section 3.6(a), this Agreement shall remain in
full force and effect, and each party hereto shall remain bound in all
respects in accordance with the terms hereof, with
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respect to all other Aircraft (and the Ownership Interests relating
thereto, as applicable) that do not suffer such Event of Loss.
(b) Incipient Event of Loss. If circumstances are such that with the
passage of time andlor a relevant determination an Event of Loss might
arise with respect to any Aircraft and those circumstances continue for
more than twenty (20) days, then either Seller or Purchaser may at any time
thereafter terminate this Agreement with respect to such Aircraft by giving
notice to the other, in which case the provisions of Section 3.6 (a) above
shall apply from and after the delivery of such notice.
3.6A Additional Conditions to Closing.
The following are additional conditions to the obligation of the Purchaser
to acquire each Aircraft or the related Ownership Interest:
(a) Delta shall have delivered the Aircraft to Seller in accordance with
the Omnibus Agreement.
(b) Seller shall have notified Purchaser of delivery of the Aircraft to
Seller and Purchaser shall have had at least fifteen (15) days to inspect
the Aircraft and the Aircraft Documents to determine whether the Aircraft
Documents have been delivered in compliance with the terms of the Omnibus
Agreement and the Aircraft has been delivered in accordance with the return
conditions in the Lease for such Aircraft. At the expiration of the 15 day
inspection period, Purchaser shall provide written notice to Seller of its
acceptance or rejection of the Aircraft.
(c) With respect to the Category I Aircraft identified in Schedule 1, the
Engines specified with respect to such Aircraft are on wing to such
Aircraft.
(d) With respect to the Category II Aircraft identified in Schedule 1, two
of the Engines identified in the Engine Pool described in Schedule I are on
wing to such Aircraft.
Provided, however, if any Engine required to be delivered on wing to any
Aircraft cannot be delivered because of a total event of loss to such
Engine Seller may offer a substitute engine for inspection and acceptance
by Purchaser at its discretion, so long as such engine is of like model,
value and utility.
3.7 Special Termination Provisions.
In the event Purchaser rejects an Aircraft that fails to meet the
conditions precedent to Closing set forth in herein, then the following
shall apply:
(i) this Agreement shall be deemed terminated with respect to the
Aircraft so rejected by Purchaser, and the Cash Purchase Price shall
be recalculated to deduct the Allocated Purchase Price with respect to
such Aircraft as set forth on Schedule 8 hereto;
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(ii) The deposit specified with respect to such Aircraft on Schedule 8
hereto will be promptly returned to Purchaser (iii) Purchaser shall
have no further obligation or liability to the applicable Seller with
respect to such Aircraft (or the Ownership Interest relating to such
Aircraft) under this Agreement,
(iv) Seller shall nor have any further obligation or liability to
Purchaser with respect to such Aircraft (or the Ownership Interest
relating to such Aircraft) other than as speified in Section
3.6(a)(iii); and
(v) for the avoidance of doubt, each of the parties hereto expressly
acknowledges and agrees that, notwithstanding the termination of this
Agreement with respect to any particular Aircraft pursuant to this
section, this Agreement shall remain in full force and effect, and
each party hereto shall remain bound in all respects in accordance
with the terms hereof, with respect to all other Aircraft (and the
Ownership Interests relating thereto, as applicable) covered by this
Agreement.
4. CONDITIONS PRECEDENT
4.1 Seller Conditions:
Seller's obligation to sell the Aircraft to Purchaser shall be subject to
fulfilment of the Seller Conditions Precedent on or before the Delivery
Date (except to the extent that Seller agrees in writing in its absolute
discretion to waive or defer any such condition).
The Seller Conditions Precedent have been inserted for Seller's benefit and
may be waived in writing, in whole or in part and with or without
conditions, by Seller without prejudicing its right to receive fulfilment
of such conditions, in whole or in part, at any later time.
If any of the Seller Conditions Precedent remain outstanding on the Final
Delivery Date and are not waived or deferred in writing by Seller, Seller
may at any time after close of business in New York on the Final Delivery
Date terminate its obligation to sell the Aircraft by notice to Purchaser,
whereupon the rights and obligations of the parties hereunder shall cease
and be discharged without further liability on the part of either Seller or
Purchaser.
4.2 Purchaser Conditions:
Purchaser's obligation to purchase the Aircraft shall be subject to
fulfilment of each of the Purchaser Conditions Precedent on or before the
Delivery Date (except to the extent that Purchaser agrees in writing in its
absolute discretion to waive or defer any such condition).
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The Purchaser Conditions Precedent have been inserted for Purchaser's
benefit and may be waived in writing, in whole or in part and with or
without conditions, by Purchaser without prejudicing its right to receive
fulfilment of such conditions, in whole or in part at any later time.
If any of the Purchaser Conditions Precedent remain outstanding on the
Final Delivery Date and are not waived or deferred in writing by Purchaser,
Purchaser may at any time after close of business in New York on the Final
Delivery Date terminate its obligation to purchase the Aircraft by notice,
whereupon the rights and obligations of the parties hereunder shall cease
and be discharged without further liability on the part of either Seller or
Purchaser.
5. PURCHASE PRICE
5.1 Amount: The purchase price for each Aircraft shall be the amount set forth
with respect to such Aircraft in Schedule 8, or an aggregate of
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] for all Aircraft (the "Purchase Price").
(a) Seller acknowledges receipt prior to execution of this agreement in the
amount of [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] (the " Deposit") which has been
allocated to each Aircraft in accordance with Schedule 8.
(b) At the closing for each Aircraft at the time of Delivery, Purchaser
will pay to the Seller the balance due on delivery of the Purchase Price
for each Aircraft as set forth in Schedule 8, hereto.
5.3 Seller's Account: The Purchase Price shall be paid in Dollars to the
"Jetran Escrow Account," account number [CONFIDENTIAL PORTION DELETED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
5.4 Payment of Taxes, Tax Indemnities:
(a) Without prejudice to Clause 7.3, the parties will co-operate so that
the Delivery Location shall be in a jurisdiction where the imposition upon
Seller or its subsidiary, affiliate, associated company, owner trust or
assignee, General Electric Capital Corporation, GECAS, and/or Purchaser of
any Taxes arising out of the sale of the Aircraft under this Agreement is
minimized.
(b) Purchaser will indemnify and hold Seller, Seller's seller and its
subsidiaries, affiliates, associated companies, owner trusts and
assignees, General Electric Capital Corporation and GECAS ("Tax
Indemnitees") harmless from any and all Taxes and expenses assessed
against any Tax Indemnitee or the Aircraft or any part thereof by any
Government Entity resulting from or arising in connection with the
sale of the Aircraft hereunder, and any Taxes and expenses assessed
against any Tax lndemnitee which are attributable to any payment made
by Purchaser under this Agreement, other than:
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(i) any Taxes (including without limitation capital gains Taxes, minimum
Taxes and doing business or franchise Taxes) imposed on the overall
income, profits or gains of a Tax Indemnitee;
(ii) any Taxes imposed as a result of Seller's failure to comply with this
Agreement or non performance in relation to any applicable laws
governing Seller's obligations hereunder; and
(iii) any Taxes arising as a result of the gross negligence or willful
misconduct of Seller.
(C) All payments to be made by Purchaser under this Agreement shall be made
in full without set off or counterclaim whatsoever and shall be made in
full without any deduction or withholding whatsoever. If however a
deduction or withholding for Taxes is required by law, each of Purchaser
shall:
(i) ensure that the deduction or withholding does not exceed the minimum
amount legally required;
(ii) immediately pay to Seller (or such other party, as the case may be)
such additional amount so that the net amount received by Seller or
such party will equal the full amount which would have been received
by it had no such deduction or withholding been made;
(iii) pay to the relevant taxation authority or other authorities within
the time allowed by law the full amount of the deduction or
withholding (including, but without prejudice to the generality of the
foregoing, the full amount of any deduction or withholding from any
additional amount paid pursuant to this sub-clause); and
(iv) provide Seller or such other party within the period for payment
permitted by the relevant law with an official receipt of the relevant
taxation authorities for all amounts so deducted or withheld or if
such receipts are not issued by the taxation authorities concerned, a
certificate of deduction or equivalent evidence of the relevant
deduction or withholding.
6. PRE-DELIVERY INSPECTION
6.1 Subject to satisfactory completion of Purchaser's pre-delivery inspection
of the Aircraft in accordance with Section 3.6A(b), Purchaser shall execute
and deliver to Seller on the Delivery Date an Acceptance Certificate in
respect: of the Aircraft, which shall be conclusive evidence (as between
Purchaser and Seller) of the matters therein stated.
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7. DELIVERY
7.1 Delivery: Subject to satisfaction (or waiver or deferral with the agreement
in writing of Seller) of the Seller Conditions Precedent, Seller shall on
the Delivery Date: i) transfer title of the Aircraft through the execution
and delivery of the applicable Delivery Documents, ii) deliver the Aircraft
Documents to Purchaser; and iii) transfer care, custody and control of the
Aircraft to Purchaser.
7.2 Delivery Data: The parties currently anticipate that Delivery will take
place on the Expected Delivery Date and shall each use reasonable efforts
so that Delivery does then take place but in any event Delivery shall occur
no later than close of business New York time on the Final Delivery Date.
7.3 Delivery Location: The ▇▇▇▇ of Sale for the Aircraft shall be delivered to
Purchaser while the Aircraft is located in one of the following locations
(the "Delivery Location"):
(a) the Expected Delivery Location; or
(b) with the agreement of the parties, another jurisdiction provided
(i) the Lex Situs Opinion is prepared and issued at Purchaser's
expense to Seller and Purchaser on or prior to Delivery; and
(ii) the parties are satisfied that no Taxes will be imposed upon any
Tax Indemnitee, Purchaser or the Aircraft as a result of the
transfer of title to the Aircraft while the Aircraft is located
in such jurisdiction, other than any Taxes which Seller or
Purchaser may agree in writing to bear.
Seller shall keep Purchaser advised as to the intended flight schedule for
the Aircraft during the period prior to the Delivery Date.
7.4 Tender and Acceptance of Delivery: On the Delivery Date, subject to this
Agreement, Seller shall tender the Aircraft for Delivery and Purchaser
shall accept delivery of the Aircraft by executing and delivering the
Acceptance Certificate to Seller.
8. AIRCRAFT CONDITION & WARRANTIES
8.1 Acceptance Certificate: Delivery of the Acceptance Certificate by Purchaser
to Seller shall be conclusive proof that Purchaser has examined and
investigated the Aircraft and that it is acceptable and in every way
satisfactory to Purchaser.
8.2 Reserved.
8.3 Reserved.
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8.4 Limitation on Warranties.
(a) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE
OTHER TRANSFER DOCUMENTS TO THE CONTRARY, AS BETWEEN THE APPLICABLE
SELLER AND PURCHASER, PURCHASER SHALL UNCONDITIONALLY ACCEPT EACH
OWNERSHIP INTEREST AND EACH SALE AIRCRAFT, IF ANY, "AS IS "'WHERE IS"
AND 'WITH ALL FAULTS." THE REPRESENTATIONS, WARRANTIES AND COVENANTS
SET FORTH IN THIS AGREEMENT AND T~E OTHER TRANSFER DOCUMENTS ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER OF ANY KIND WHATSOEVER, WHETHER WRITTEN, ORAL,
EXPRESS OR IMPLIED, AND NO SELLER HAS MADE AND NO SELLER SHALL BE
DEEMED TO HAVE MADE, AND EACH SELLER HEREBY DISCLAIMS, (I) ANY
REPRESENTATION, WARRANTY OR COVENANT (EXCEPT THE REPRESENTATIONS,
WARRANTIES AND COVENANTS SET FORTH IN THIS AGREEMENT AND THE OTHER
TRANSFER DOCUMENTS TO WHICH SUCH SELLER IS A PARTY) AS TO THE TITLE,
AIRWORTHINESS, CONDITION, DESIGN, VALUE, OPERATION, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR USE OF ANY AIRCRAFT (OR ANY PART
THEREOF), THE FREEDOM OF ANY AIRCRAFT (OR ANY PART THEREOF) FROM ANY
LATENT OR OTHER DEFECT (WHETHER OR NOT DISCOVERABLE) OR ANY ACTUAL OR
ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT OR THE LIKE,
OR THE COMPLIANCE OF ANY AIRCRAFT (OR ANY PART THEREOF) WITH ANY
APPLICABLE LAWS OR REGULATIONS , (II) ANY REPRESENTATION, WARRANTY OR
COVENANT WITH RESPECT TO THE TAX OR ACCOUNTING TREATMENT OF ANY
OWNERSHIP INTEREST OR ANY TRUST ESTATE, AND (III) ALL OTHER
REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER WRITTEN, ORAL,
EXPRESS OR IMPLIED (EXCEPT THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN THIS AGREEMENT AND THE OTHER TRANSFER DOCUMENTS TO WHICH SUCH
SELLER IS A PARTY); IT BEING UNDERSTOOD THAT ALL SUCH FOREGOING
DISCLAIMED RISKS, AS BETWEEN SELLER AND PURCHASER, ARE TO BE BORNE
SOLELY BY PURCHASER.
(b) Notwithstanding anything to the contrary set forth elsewhere in this
Agreement or in any of the other transfer documents, in the event of
any breach by any Seller of the title warranties set forth in Schedule
5 Part A in respect of any Sale Aircraft, the maximum liability of
such Seller in respect of any such breach shall be limited to the
amount equal to the Allocated Purchase Price with respect to such
Aircraft, as set forth in Schedule 8 hereto, and in no event shall any
such Seller have any obligation or liability to Purchaser or
Purchaser's Designee in respect of such breach other than to pay to
Purchaser or Purchaser's Designee an amount equal to the losses
incurred by Purchaser or Purchaser's Designee as a result of such
breach, subject to the maximum limitation set forth in this section.
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9. REGISTRATION FEES
Purchaser shall bear any duties or fees payable to the Air Authority in
connection with the transfer of title to the Aircraft from Seller to
Purchaser.
10. INDEMNIFICATION.
(a) Indemnification of Purchaser. Seller agrees to indemnify, defend and
hold harmless Purchaser and each Purchaser's Designee (if any) and
their respective officers, employees or agents (collectively,
"Purchaser Indemnitees") from and against any and all Losses suffered
or incurred by any Purchaser Indemnitee to the extent the Losses are
based upon or arise out of (I) the purchase, manufacture, ownership,
possession, registration, performance, transportation, management,
sale, control, inspection, use or operation, design. condition,
testing, delivery, leasing, maintenance, repair, service,
modification, overhaul, replacement, removal or redelivery of such
Aircraft, or any loss of or damage to such Aircraft, or otherwise in
connection with such Aircraft or relating to loss or destruction of or
damage to any property, or death or injury to any person caused by,
relating to or arising from or out of (in each case whether directly
or indirectly) any of the foregoing matters, in each case to the
extent occurring or attributable to the period of time prior to the
Effective Time on the applicable Closing Date for such Aircraft; (ii)
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 to the extent that
any Losses attributable to the matters described in this sub-clause
(ii) arise out of any act, omission, event or circumstance occurring
prior to the Effective Time on the applicable Closing Date; (iii) the
Ownership Interest relating to such Aircraft in respect of or relating
to the period of time prior to the Effective Time on the applicable
Closing Date for such Aircraft; (iv) any breach by Seller of any
representation or warranty of Seller contained herein or in any other
Transfer Document; (v) any failure of Seller to pay, perform and
comply with any covenant, duty or obligation of Seller contained in
any Applicable Document relating to such Aircraft prior to the
Effective Time on the applicable Closing Date; or (vi) any failure of
Seller to pay, perform or comply with any covenant, duty or obligation
of Seller contained herein or in any other Transfer Document; provided
that the liability of the applicable Seller for any obligation under
clauses (i), (ii), (iii) and (v) shall be solely for Losses which
arise directly from a third party claim against a Purchaser Indemnitee
and no Seller shall have any obligations under clauses (i), (ii),
(iii) or (v) above with respect to any Tax or (in the case of any
other Loss) if and to the extent that Lessee is obligated under any
applicable Lease or otherwise to provide such indemnification to the
applicable Purchaser Indemnitee. The indemnity set forth in this
Section 10(a) shall not apply to any Loss (1) which is attributable to
the willful misconduct or gross negligence of Purchaser, any
Purchaser's Designee or any of
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their respective employees, servants or agents, (2) which results from
the breach by Purchaser or any Purchaser's Designee of any
representation, warranty or covenant made herein, in any of the other
Transfer Documents or in any Applicable Document relating to any
Aircraft, (3) which are ordinary or usual operating or overhead
expenses of Seller (except to the extent the same arise on the
occurrence of any breach by Purchaser or Purchaser's Designee of its
obligations under this Agreement or the other applicable Transfer
Documents), (4) which are required to be borne Seller in accordance
with any other express provision contained in this Agreement or any
other Transfer Document.
(b) Indemnification of Sellers. The Purchaser agrees to indemnify, defend
and hold harmless Seller, and each Seller's Designee and their
shareholders, subsidiaries, affiliates, partners, contractors,
officers, directors, representatives, agents and employees
(collectively, "Seller Indemnitees") from and against any and all
Losses suffered or incurred by any Seller Indemnitee, to the extent
the Losses are based upon or arise out of (i) the purchase,
manufacture, ownership, possession, registration, performance,
transportation, management, sale, control, inspection, use or
operation, design, condition, testing, delivery, leasing, maintenance,
repair, service, modification, overhaul, replacement, removal or
redelivery of such Aircraft, or any loss of or damage to such
Aircraft, or otherwise in connection with such Aircraft or relating to
loss or destruction of or damage to any property, or death or injury
to any person caused by, relating to or arising from or out of (in
each case whether directly or indirectly) any of the foregoing
matters, in each case to the extent occurring or attributable to the
period of time after the Effective Time on the applicable Closing Date
for such Aircraft, (ii) 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 to
the extent that any Losses attributable to the matters described in
this sub-clause (iii) arise out of any act, omission, event or
circumstance occurring after the Effective Time on the applicable
Closing Date; (iii) the Ownership Interest relating to such Aircraft
in respect of or relating to the period of time from and after the
Effective Time on the applicable Closing Date for such Aircraft; (iv)
any breach by the Purchaser or any Purchaser's Designee of any
representation or warranty of the Purchaser or such Purchaser's
Designee contained herein or in any other Transfer Document; or (iv)
any failure of the Purchaser to pay, perform and comply with any
covenant, duty or obligation of the Purchaser contained in any
Applicable Document relating to such Aircraft to the extent expressly
assumed by the Purchaser pursuant to the applicable Assignment and
Assumption Agreement; (v) any failure of the Purchaser or any
Purchaser's Designee to pay, perform or comply with any covenant, duty
or obligation of the Purchaser or such Purchaser's Designee contained
herein or in any other Transfer Document;; provided that the liability
of the Purchaser for any obligation under clauses (i), (ii), (iii) and
(iv) shall be solely for Losses which arise directly from a third
party claim against a Seller Indemnitee and the Purchaser shall have
no obligations under clauses (i), (ii), (iii) or (iv) above with
respect to any Tax or (in the case of any other Loss) if and to the
extent that Lessee is obligated under any applicable Lease or
otherwise to provide such indemnification to the applicable Seller
Indemnitee. The indemnity set forth in this Section 10(b) shall not
apply to any Loss (1) which is attributable to the willful misconduct
or gross negligence of any Seller or any of their respective
employees, servants or agents, (2) which results from the breach by
Seller of any representation, warranty or
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covenant made herein, in any of the other Transfer Documents relating
to any Aircraft, (3) which are ordinary or usual operating or overhead
expenses of Seller (except to the extent the same arise on the
occurrence of any breach by Purchaser or Purchaser's Designee of its
obligations under this Agreement or the other applicable Transfer
Documents), or (4) which are required to be borne by Seller in
accordance with any other express provision contained in this
Agreement or any other Transfer Document.
ii. FURTHER PROVISIONS
11.1 Benefit of Agreement: Neither party shall assign or transfer all or any
of its rights and/or obligations under this Agreement without the prior
written consent of the other party.
11.2 Counterparts: This Agreement may be executed in any number of separate
counterparts and each counterpart shall when executed and delivered be
an original document but all counterparts shall together constitute one
and the same instrument.
11.3 Waivers and Variation: Rights of a party, arising under this Agreement
or the general law, shall not be waived or varied unless done so
expressly in writing and only then in that specific case, on that
specific occasion and on any terms specified.
11.4 Third Party Rights: A person who is not a party to this Agreement has no
direct right to enforce any term of this Agreement nor to object or be
consulted about any amendments to this Agreement.
11.5 Notices: Any notice in connection with this Agreement shall be given in
writing and in English. A notice shall be delivered personally or by
post, email or facsimile as detailed below (or as otherwise notified by
the receiving party from time to time). A notice shall be deemed
received - if posted, three (3) days after it is mailed; if sent by hand
or courier, when it is delivered; if faxed, when the fax is sent with a
dear transmission report; if by email, when received into the 'In Box'
of the recipient and a "read receipt" generated:
to Seller at:
JETRAN, LLC
▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
----------------------------
-12-
to Purchaser at:
JetGIobal, LLC
C/O BCI Aircraft Leasing, Inc.
One IBM Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with copies to:
Global Aircraft Solutions, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
Rothgerber ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
11.6 Invalidity of any Provision: If any part of this Agreement becomes
invalid, illegal or unenforceable under any applicable law, the
validity, legality and enforceability of the remaining provisions shall
not in any way be affected.
11.7 Entire Agreement: This Agreement together with the schedules attached
hereto constitutes the entire agreement between the parties hereto in
relation to the sale and purchase of the Aircraft and supersedes all
previous proposals, representations, agreements and other written and
oral communications in relation thereto.
11.8 Costs and Expenses: Except where this Agreement states differently, each
party shall bear its own fees, costs and expenses arising out of or
connected with this Agreement. For the avoidance of doubt, Seller shall
not be responsible for any broker's fees, commissions or expenses
relating to the sale of the Aircraft.
12. GOVERNING LAW
This Agreement in all respects shall be governed by, and construed in accordance
with, the laws of the State of New York. The U.N. Convention on Contracts for
the International Sales of Goods is not
-13-
applicable to this Agreement and all of its terms must be construed in
accordance with the law applicable to domestic transactions in the State of New
York.
13 . BROKERS AND OTHER THIRD PARTIES
13.1 No Brokers: Each party represents and warrants to the other that it has
not paid, agreed to pay or caused to be paid directly or indirectly in
any form, any commission, percentage, contingent fee, brokerage or other
similar payments of any kind, in connection with the establishment or
operation of this Agreement, to any Person (other than fees payable by
each party to its legal advisers or any management or related fees and
expenses which may be paid or payable to Seller).
13.2 Indemnity: Each party agrees to indemnify and hold the other harmless
from and against any and all claims, suits, damages, costs and expenses
(including, but not limited to reasonable attorneys' fees) asserted by
any agent, broker or other third party for any commission or
compensation of any nature whatsoever based upon this Agreement or the
Transaction Documents or the Aircraft, if such claim, suit, damage, cost
or expense arises out of any breach by the indemnifying party, its
employees or agents of Clause 13.1.
14. CONFIDENTIALITY
The parties will hold the financial terms of this Agreement, any
non-public financial information concerning any of the parties and all
non-public information obtained pursuant to the requirements hereof
which has been identified as confidential by any party, except as
required or requested by any law, rule or regulation of any governmental
agency or representative thereof, delivered in response to legal process
or delivered to independent auditors and counsel to the disclosing
party. It is also understood that any party may disclose to any and all
persons, without limitation of any kind, the U.S, federal income tax
treatment and U.S. federal income tax structure of the transactions
described herein and all materials of any kind (including opinions or
other tax analyses) relating to such tax treatment and tax structure,
provided that if any document or similar item contains information
concerning U.S. federal income tax treatment or U.S. federal income tax
structure, as well as other information, this understanding will apply
only to such portions of the document or other similar items that relate
to such tax treatment or such tax structure.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
- 14 -
EXECUTION PAGE
IN WITNESS whereof this Agreement has been signed on the day and year first
above written
Seller
JETRAN, LLC
By: /s/ M.D. ▇▇▇▇▇, Jr.
-------------------------
Name: M. D. ▇▇▇▇▇, Jr.
Title: C.E.O.
Purchaser
JETGLOBAL, LLG
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President/Manager
-S-
SCHEDULE 1
Part A
Description Of Aircraft
CATEGORY 1 AIRCRAFT
-------------------
LESSEE U.S. NO. I NO. 2 SCHEDULED
SHIP ESN ESN EXPIRY
MSN NO. REG. DATE
NO.
23079 307 N3O7DL 709163 709143 30-Sep-05
23084 312 N3I2DL 709118 709130 TBA
23085 313 N3I3DL 709123 709160 TBA
23087 315 N3I5DL 709120 709165 TBA
23088 316 N3I6DL 709125 709195 TBA
23089 317 N3I7DL 709132 709164 15-Sep-05
23090 318 N3I8DL 709166 709183 30-Sep-05
23092 320 N32ODL 709115 709159 TBA
23093 321 N321 DL ▇▇▇▇▇▇ 709152 30-Sep-05
23094 322 N322DL 709133 709129 30-Sep-05
23099 327 N327DL 717159 709186 30-Sep-05
23100 328 N328DL 709180 709178 TBA
23608 381 N38IDL 709181 717160 02-Sep-05
23609 382 N382DL 709150 709127 02-Sep-05
Schedule 1-1
CATEGORY 2 AIRCRAFT
-------------------
LESSEE U.S. NO.1 NO.2 SCHEDULED
SHIP ESM ESN EXPIRY
MSN NO. REG. DATE
NO.
23073 301 N3OIDL * * 30-Sep-06
23074 302 N3020L * * 31-Oct-06
23075 303 N3O3DL * * 30-Nov-06
23076 304 N304DL * * 31-Dec-06
23077 305 N305DL * * 31-Jan-07
23078 306 N3060L * e 28-Fe1;-07
23080 308 N308DL * * 31-Mar-07
23081 309 N3O9DL * * 31-Mar-07
23086 314 N3I4DA * * 31-May-07
23098 326 N326DL * * 31-Oct-07
23101 329 N329DL * * 31-Dec-06
23102 330 N32ODL * * 31-Oct-07
* Except as provided in this Agreement, each Category 2 Aircraft shall be
delivered with two Engines from the following pool:
700087 709124 709144 709154 709158 709185
709114 709128 709149 709155 709167 709194
709119 709131 709151 709156 709169 717154
709122 709135 709153 709157 709179 717163
All engines are [specify manufacturer and type], and have rated takeoff
horsepower of 750 or more.
Schedule 1-2
SCHEDULE 2
AIRCRAFT DOCUMENTS
With respect to each Aircraft other than any Aircraft delivered on lease (if
any), the Seller shall have exercised good faith efforts to cause Lessee to
deliver to Purchaser all of the Aircraft Documents in respect of such Aircraft
and the Aircraft Documents so delivered to Purchaser will be in a format
substantially similar to the Aircraft Documents relating to any one of the
Aircraft bearing manufacturer's serial numbers 23084, 23085, 23100 and 23608,
which were provided to Purchaser for inspection prior to the execution and
delivery of this Agreement. Seller and Purchaser hereby expressly acknowledge
and agree that in the event that the Aircraft Documents tendered to Purchaser by
Lessee in respect of any Aircraft other than the ones identified by
manufacturer's serial number in the preceding sentence or any Aircraft delivered
on lease, do not meet the standard specified in the immediately preceding
sentence, Purchaser shall have the option of either (I) accepting the Aircraft
with such Aircraft Documents as shall have been tendered to Purchaser by Lessee,
in which case the parties shall proceed to close the sale and purchase of such
Aircraft in accordance with the this agreement, rejecting such Aircraft for
failure to satisfy the condition precedent set forth in this Schedule 4, in
which case the parties respective rights and obligations in respect of such
Aircraft and this Agreement shall be governed by Section 3.7 above.
Schedule 2-1
SCHEDULE 3 DEFINITIONS
"Acceptance Certificate" means a certificate of acceptance substantially in the
form of Schedule 7;
"Air Authority" means the civil aviation authority of the State of Registration;
"Aircraft" means the aircraft described in Schedule I (which term includes,
where the context admits, a separate reference to all Engines, Parts and
Aircraft Documents);
"Aircraft Documents" means the documents specified in Schedule 2, and all
additions, renewals and replacements made thereto prior to Delivery, to the
extent that Seller has acquired title thereto;
"▇▇▇▇ of Sale" means each of the FAA Form 8050-2 ▇▇▇▇ of sale and the warranty
▇▇▇▇ of sale substantially in the form of Schedule 6, executed by Seller in
respect of the Aircraft (collectively, the "Bills of Sale");
"Business Day" means a day (other than a Saturday or Sunday) on which banks are
open for business in New York;
"Delivery" means the transfer of title of the Aircraft and transfer of care,
custody and control of the Aircraft by Seller to Purchaser hereunder;
"Delivery Condition Requirements" means the requirements set out in Part B of
Schedule 1;
-----------
"Delivery Date" means the date upon which closing of the acquisition of the
Aircraft or Ownership Interest by Purchaser occurs.
"Delivery Documents" is defined in Clause 3.2;
"Delivery Location" is defined in Clause 7.3(a);
"Delta'~ means Delta Air Lines, Inc.
"Engines" means the engines specified in Schedule 1, together with all equipment
and accessories belonging to, installed in, or appurtenant to, such engines;
"Event of Loss" means with respect to the Aircraft (including for the purposes
of this definition the Airframe):
(a) the actual or constructive total loss of the Aircraft (including any damage
to the Aircraft which results in an insurance settlement on the basis of a
total loss, or requisition for use or hire which results in an insurance
settlement on the basis of a total loss); or
Schedule 3 - 1 -
(b) the Aircraft being destroyed, damaged beyond economic repair or permanently
rendered unfit for normal use for any reason whatsoever; or
(c) the requisition of title or other compulsory acquisition of title for any
reason of the Aircraft by the government of the State of Registration or
any other authority (whether de jure or de facto>; or
(d) the hijacking, theft, disappearance, condemnation, confiscation, seizure,
detention or requisition for use or hire of the Aircraft which deprives
Seller or any Person permitted by Seller to have possession and/or use of
the Aircraft of its possession and/or use for (i) more than 15 days (or 30
days, in the case of requisition for use or hire by the government of the
State of Registration) or (ii) if earlier, a period ending on the Final
Delivery Date;
"Expected Delivery Date" has the meaning ascribed in the Omnibus Agreement
"Expected Delivery Location" is the location for delivery of the Aircraft
described in the Omnibus Agreement provided that Purchaser will not be obligated
to accept delivery of the Aircraft over international waters.
"FAA" means the United States Federal Aviation Administration.
"FAA Counsel" means ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, the address of
which is ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile
no. (405) 232- 0865.
"GECAS" means either or both GE Capital Aviation Services, Inc. and GE
Commercial Aviation Services Limited, and their successors and assigns;
(1) Government Entity" means:
(a) any national government, political subdivision thereof, or local
jurisdiction therein;
(b) any instrumentality, board, commission, court, or agency of any of the
above, however constituted; and
(c) any association, organization, or institution of which any of the above is
a member or to whose jurisdiction any thereof is subject or in whose
activities any of the above is a participant;
"Law" includes (a) any statute, decree, constitution, regulation, order,
judgement or other directive of any Government Entity; (b) any treaty, pact,
compact or other agreement to which any Government Entity is a signatory or
party; (c) any judicial or administrative interpretation or application of any
Law described in (a) or (b) above; and (d) any amendment or revision of any Law
described in (a), (b) or (c) above;
"Lease" means a lease between Delta and a seller under the Omnibus Agreement
with respect to an Aircraft.
Schedule 3-2-
"Lex Situs Opinion" means an opinion of counsel acceptable to Seller and
Purchaser in the jurisdiction in which the Aircraft is located at Delivery, in
form and substance satisfactory to both parties;
"Losses" means losses, liabilities, claims, proceedings, penalties, judgments,
damages, costs and expenses;
"Manufacturer" means Boeing;
"Omnibus Agreement'1 means the Omnibus Sale Agreement dated August 31, 2005
between GECAS and Seller.
"Ownership Interest" means the owner participant's interest in the Trust with
respect to any Aircraft.
"Part"' means, whether or not installed on the Aircraft, any component,
furnishing or equipment (other than a complete Engine) furnished with the
Aircraft on the Delivery Date;
"Permitted Lien" means any Security Interest created by or resulting from debts
or liabilities or actions of Purchaser;
"Person" means any individual person, corporation, partnership, firm, joint
stock company, joint venture, trust, estate, unincorporated organization,
association, Government Entity, or organization or association of which any of
the above is a member or a participant;
"Purchase Price" is defined in Clause 5.1;
"Purchaser Conditions Precedent" means the conditions set out in Part B of
Schedule 4;
"Security Interest" means any mortgage, charge, pledge, lien, encumbrance,
assignment, hypothecation, right of set-off or any other agreement or
arrangement having the effect of conferring security;
"Seller Conditions Precedent" means the conditions specified in Part A of
Schedule 4; "State of Registration" means United States of America;
"Taxes" means any and all present and future taxes, duties, withholdings,
levies, assessments, imposts, fees and other governmental charges of all kinds
(including without limitation any value added or similar tax and any stamp,
documentary, registration or similar tax), together with any penalties, fines,
surcharges and interest thereon and any additions thereto;
"Transaction Documents" means this Agreement, the Bills of Sale, the Acceptance
Certificate and any agreement amending or supplementing any of the foregoing
documents;
Schedule3-3-
"Trust" means any trust holding title to an Aircraft and the lessor's interest
in the Lease of that Aircraft.
"Trustee" means the trustee under any trust.
"US$" and "Dollars" means the lawful currency of the United States of America,
and (in relation to all payments in dollars to be made under this Agreement)
same day funds.
Schedule 3-4-
SCHEDULE 4
CONDITIONS PRECEDENT
Part A
Seller Conditions Precedent
I. Seller shall have received each of the following documents and evidence:
o an opinion of counsel regarding due execution of this Agreement and
other relevant Transaction Documents by Purchaser and other matters,
in form and substance satisfactory to Seller;
the Acceptance Certificate duly executed by Purchaser;
if applicable, the Assignment and Assumption Agreement;
o if Delivery occurs while the Aircraft is not located in Expected
Delivery Location, the Lex Situs Opinion duly signed by the counsel
providing the same;
2. Seller shall have received on or before the Delivery Date, the Purchase
Price;
3. Seller shall be satisfied that the Delivery Location, and the arrangements
described in Clause 7, do not give rise to any Taxes, other than Taxes
which Purchaser or Seller shall have agreed in writing to bear;
4. Purchaser shall have pre-positioned in escrow with FAA Counsel the
documents required to be delivered by Purchaser to FAA counsel in
accordance with the Agreement;
5. The representations given by each of the Purchaser in Part B of Schedule 5
being true and accurate on the Delivery Date;
6. Purchaser shall not be in material default of its obligations under this
Agreement; and
7. No change having occurred after the date of this Agreement in any
applicable Law which would make it illegal for Seller to perform any of its
obligations under this Agreement (and any other documents to be entered
into pursuant hereto); provided that if any such change has occurred the
parties may but shall not be obliged to use all reasonable co-operative
endeavors to restructure the transaction contemplated by such documents so
as to avoid the aforementioned illegality.
Schedule 4-1
Part B
Purchaser Conditions Precedent
1. Purchaser shall have received each of the following documents and evidence:
if applicable, the Bills of Sale in respect of the Aircraft;
if applicable, the Assignment and Assumption Agreement;
o an opinion of counsel regarding due execution of this Agreement and
other relevant Transaction Documents by Seller and other matters, in
form and substance satisfactory to Purchaser;
o if Delivery occurs while the Aircraft is not located in Expected
Delivery Location, the Lex Situs Opinion duly signed by the counsel
providing the same;
o if the Aircraft is currently under lease, an insurance certificate and
broker's opinion in form and substance satisfactory to Purchaser,
naming the Purchaser and party providing funding to the Purchaser as
loss payee and additional insured, together with a consent to
assignment of the owner participant's interest in the trust or sale of
the Aircraft to Purchaser, as appropriate.
2. Reserved.
3. Purchaser shall be satisfied that the Delivery Location, and the
arrangements described in Clause 7, do not give rise to any Taxes, other
than any taxes which Seller or Purchaser shall have agreed in writing to
bear;
4. Purchaser shall have pre-positioned in escrow with FM Counsel the documents
required to be delivered by Purchaser to FAA counsel in accordance with the
Agreement;
5. The Aircraft shall not have suffered an Event of Loss on the Delivery Date;
6. The representations given by Seller in Part A of Schedule 5 being true and
accurate on the Delivery Date;
7. No change having occurred after the date of this Agreement in any
applicable Law which would make it illegal for Purchaser to perform any of
its obligations under this Agreement (and any other documents to be entered
into pursuant hereto); provided that if any such change has occurred the
parties may but shall not be obliged to use all reasonable co-operative
endeavors to restructure the transaction contemplated by such documents so
as to avoid the aforementioned illegality.
3. The Seller not being in material default of its obligations under this
Agreement.
Schedule 4-2
SCHEDULE 5
REPRESENTATIONS AND WARRANTIES
Part A
Sellers Representations And Warranties
1. General Representations and Warranties: Seller represents and warrants to
Purchaser as follows
o Seller duly exists and has the power to enter into and implement the
transactions contemplated by the Transaction Documents to which it is
a party;
o the execution, delivery and performance of the Transaction Documents
to which it is a party have been duly authorized by all necessary
action on the part of Seller;
o the Transaction Documents to which it is a party Constitute legal,
valid and binding obligations of Seller;
o each consent required by Seller to authorize, or required by it in
connection with the execution, delivery, performance, legality,
validity or enforceability of the Transaction Documents to which it is
a party has been obtained and is in full force and effect, and there
is no default in the observance or performance of any of the
conditions and restrictions (if any) imposed on or in connection
therewith; and
o the execution, delivery and performance by Seller of the Transaction
Documents to which it is a party will not (i) conflict with, or result
in any material breach of, any of the terms of1 or constitute a
default under, any agreement or document to which it is a party or by
which it or any of its property or assets may be bound or (ii)
contravene or conflict with the provisions of its constitutive
documents.
Part B
Purchaser's Representations And Warranties
With respect to itself, Purchaser represents and warrants to Seller that the
following statements are tme and accurate:
o Purchaser duly exists under the laws of its state of organization in
the United States of America and has the power to enter into and
implement the transactions contemplated by the Transaction Documents
to which it is a party;
o the execution, delivery and performance of the Transaction Documents
to which it is a party have been duly' authorized by all necessary
corporate action on the part of Purchaser;
Schedule 5 - 1
o the Transaction Documents to which it is a party constitute legal,
valid and binding obligations of Purchaser;
o each consent required by Purchaser to authorize, or required by it in
connection with the execution, delivery, performance, legality,
validity or enforceability of the Transaction Documents to which it is
a party has been obtained and is in full force and effect, and there
is no default in the observance or performance of any of the
conditions and restrictions (if any) imposed on or in connection
therewith; and
o the execution, delivery and performance by Purchaser of the
Transaction Documents to which it is a party will not (I) conflict
with, or result in any material breach of, any of the terms of, or
constitute a default under any agreement or document to which it is a
party or by which it or any of its property or assets may be bound or
(ii) contravene or conflict with the provisions of its constitutive
documents.
Schedule 5 - 2
SCHEDULE 6
AIRCRAFT ▇▇▇▇ OF SALE
One (1) B737-200 Aircraft
manufacturer's serial number ___________
WHEREAS, JETRAN, LLC, as seller (the "Seller"), is the owner of the aircraft,
engines, equipment and documents described below (hereinafter referred to as the
"Aircraft(1)'):
o B737-200A aircraft bearing manufacturer's serial number ________ with
two ▇▇▇▇▇ & Whitney model JT8D- engines bearing manufacturer's serial
numbers __________ and ______________
o all equipment, accessories and parts belonging to, installed in or
appurtenant to such aircraft or engines; and
as further described and defined in that certain Aircraft Sale & Purchase
Agreement dated as of August __ 2005 among Jetran, LLC, as Seller and JetGlobal,
LLC, as Purchaser (the "Aircraft Sale and Purchase Agreement"). Capitalized
words used herein shall have the meaning given to such words in the Aircraft
Sale and Purchase Agreement.
Now, THEREFORE, for good and valuable consideration the receipt and sufficiency
of which is hereby acknowledges, Seller does hereby sell, grant, convey,
transfer and deliver and set over unto ___________________ a
____________________________ ("Purchaser'), all of Seller's right, title and
interest in and to the Aircraft, subject to Permitted Liens.
Seller hereby warrants to Purchaser that there is hereby conveyed to Purchaser
good and marketable title to the Aircraft, Engines, parts, components, equipment
installed thereon or appurtenant thereto, free and clear of all liens, claims,
charges and encumbrances other than Permitted Liens, including any mortgage,
pledge, lien, charge, assignment, hypothecation, security interest, lease, title
retention, preferential right or trust agreement, pooling, exchange, overhaul or
repair agreement, or any other interest affecting title, and that Seller will
warrant and defend such title against all claims and demands whatsoever.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER SET FORTH IN THE
AIRCRAFT SALE AND PURCHASE AGREEMENT, THE AIRCRAFT (AS DEFINED) IS BEING SOLD
AND DELIVERED TO PURCHASER "AS IS" AND "WHERE IS", AND WITHOUT ANY
REPRESENTATION, GUARANTEE OR WARRANTY OF SELLER EXPRESS OR IMPLIED, OF ANY KIND,
ARISING BY LAW OR OTHERWISE.
WITHOUT LIMITING THE GENERALITY OF THE ABOVE, EACH OF PURCHASER AND JETRAN
UNCONDITIONALLY AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE
BY SELLER SET FORTH IN THE AIRCRAFT SALE AND PURCHASE AGREEMENT, THE AIRCRAFT
(AS DEFINED) IS TO BE SOLD AND PURCHASED IN AN "AS IS", 'WHERE IS" CONDITION AS
AT THE DELIVERY DATE,
Schedule 6 - I
AND NO TERM, CONDITION, WARRANTY, REPRESENTATION OR COVENANT OF ANY KIND HAS
BEEN ACCEPTED, MADE OR IS GIVEN BY SELLER OR ITS SERVANTS OR AGENTS IN RESPECT
OF THE AIRWORTHINESS, VALUE, QUALITY, DURABILITY, DATE PROCESSING, CONDITION,
DESIGN, OPERATION, DESCRIPTION, MERCHANTABILITY OR FITNESS FOR USE OR PURPOSE OF
THE AIRCRAFT OR ANY PART THEREOF, AS TO THE ABSENCE OF LATENT, INHERENT OR OTHER
DEFECTS (WHETHER OR NOT DISCOVERABLE), AS TO THE COMPLETENESS OR CONDITION OF
THE AIRCRAFT DOCUMENTS, AND/OR AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY
PATENT, COPYRIGHT, DESIGN, OR OTHER PROPRIETARY RIGHTS. ALL TERMS, CONDITIONS,
WARRANTIES AND REPRESENTATIONS (OR OBLIGATION OR LIABILITY, IN CONTRACT OR IN
TORT) IN RELATION TO ANY ONE OR MORE OF THOSE MATTERS, EXPRESSED OR IMPLIED,
STATUTORY OR OTHERWISE1 ARE EXPRESSLY EXCLUDED.
This Aircraft ▇▇▇▇ of Sale is made and delivered pursuant to the provisions of
the Aircraft Sale and Purchase Agreement and is governed by the laws of the
State of New York.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Schedule 6 - 2
IN WITNESS WHEREOF Seller has caused this instrument to be executed by its
duly authorized representative on ________________ 2005. SELLER:
JETRAN, LLC
By:
Name:
Title:
Schedule 6-3
SCHEDULE 7
FORM OF ACCEPTANCE CERTIFICATE
One (1) B737-200 Aircraft
manufacturer's serial number ___________
(as more particularly defined in the Aircraft Sale and Purchase
Agreement described below, the "Aircraft")
___________________________ (the "Purchaser") hereby certifies that pursuant to
the Aircraft Sale & Purchase Agreement dated as of August .2005 between Jetran,
LLC, as seller (the "Seller') and JetGlobal, LLC, as Purchaser (the "Aircraft
Sale and Purchase Agreement'):
(a) Purchaser has inspected the Aircraft, and the Aircraft conforms with the
description and is in the condition and equipped as required by the
Aircraft Sale and Purchase Agreement;
b) Purchaser has accepted delivery of the Aircraft and is fully satisfied with
the Aircraft and such acceptance;
(c) Purchaser has received and inspected all of the Aircraft Documents (as
defined in the Aircraft Sale and Purchase Agreement) and found them to be
complete and satisfactory;
Purchaser acknowledges that it has no rights or claims whatsoever against Seller
in respect of the condition of the Aircraft or the Aircraft Documents or any of
the other matters referred to in Clause 8.4 of the Aircraft Sale and Purchase
Agreement.
Date:
Duly executed for the Purchaser by;
JETGLOBAL, LLC
By:
Name:
Title:
Schedule 7 - 1
SCHEDULE 8
Aircraft MSN Allocated Purchase Price Allocation of Deposit Balance Due
(Total Cash Purchase) on Delivery
Price $ CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
------------------------------------------------------------------------------------------------------------
Category 1
Aircraft
1 23079 $ [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION]
2 23084 $ [CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION]
3 23085 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
4 23087 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
5 23088 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
6 23089 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
7 23090 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
8 23092 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
9 23093 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
10 23094 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
11 23099 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
12 23100 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
13 23608 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
14 23609 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
Total $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION]
Category 2 Aircraft
1 23073 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
2 23074 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
3 23075 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
4 23076 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
5 23077 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
6 23078 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
7 23080 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
8 23081 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
9 23086 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
10 23098 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
11 23101 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
12 23102 $[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
SCHEDULE 9
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION OF OWNERSHIP INTEREST
[N______]
The form of the Assignment and Assumption Agreement between Seller and Purchaser
shall be in the same form as set forth in Exhibit A of the Omnibus Agreement
between
Seller and GECAS
(00220841 /3)
