1
Exhibit 10.10
SALE AND PURCHASE
AGREEMENT
TWO BOEING 737-200 SERIES
AIRCRAFT
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BETWEEN
EUROPEAN AVIATION LIMITED
AND
AMERICAN AIRCARRIERS SUPPORT
2
THIS AGREEMENT IS MADE THIS 26th DAY OF MARCH 1998
BETWEEN
EUROPEAN AVIATION LIMITED, whose headquarters are based at Xxxxxxxx Xxxx,
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx, XX0 0XX, XX (company registration number
0000000)(Xxx.Xx. 00 00(0)0000 000000/Fax No. 00 00(0)0000 000000) hereinafter
referred to as "The Seller"
AND
AMERICAN AIRCARRIERS SUPPORT INCORPORATED, whose headquarters are
based at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxx Xxxxxxxx 00000, XXX
(company registration number )(Xxx.Xx. 000 000 000 0000/Fax No. 000 000 000
2207) hereinafter referred to as 'The Buyer'
WHEREBY IT IS AGREED as follows:
In this agreement the following expression shall have the following meanings:
1.1 "Aircraft" means the two Boeing 737-200 Series aircraft bearing
Manufacturer's Serial Numbers 19934 and 19953 as described in Exhibit A
and equipped with four JT8D-7B Series engines bearing Manufacturer's
Serial Numbers 653545, 655977, 653333 and 656097 as described in
Exhibit B and together with the logbooks, maintenance records,
manuals, handbooks and other documents in respect of the Aircraft and
engines.
1.2 "Delivery" means the tender of the Aircraft by the Seller to the Buyer
and the acceptance of the Aircraft in accordance with the terms of this
agreement.
1.3 'Delivery Date' means the actual date on which Delivery was effected.
1.4 'Purchase Price' means the sum of 1.1 million US Dollars(one million,
one hundred thousand United States Dollars) per aircraft.
2. SALES OF THE AIRCRAFT.
2.1 Subject to the terms and conditions of this agreement the Seller will
sell the Aircraft to the Buyer and the Buyer will purchase the Aircraft
from the Seller for the Purchase Price.
(1)
3
2.2 The payment of the Purchase Price shall be made in full by means of
telegraphic transfer of immediate available funds to the Seller's
account maintained with National Westminster Bank, Bournemouth Branch,
The Square, 0 Xxx Xxxxxxxxxxxx Xxxx, Xxxxxxxxxxx, XX0 0XX, XX, (XX
Dollar Account No.00000000).
3. TAXATION:
3.1 To the best of the Sellers knowledge no Import or export duties are
currently outstanding for the Aircraft and the Seller shall be liable
for any and all Import and Export duties or levies that may have
occurred or been accessed prior to the Delivery of the Aircraft to the
Buyer. The Buyer shall pay all duties and levies that are incurred or
accessed after the Buyer takes delivery of the Aircraft as per the
Delivery Date as set forth in Section 4.
4. DELIVERY:
4.1 Delivery shall take place on or before 27th March 1998.
4.2 Upon request the Seller shall complete and the Buyer shall sign a
Delivery Certificate in duplicate in the form set out in the second
schedule and each party shall retain one copy of it.
4.3 Immediately following Delivery the Seller shall take all necessary
steps to enable the Buyer to be registered as owner.
4.4 Unless otherwise agreed in writing between the parties delivery shall
take place at Bournemouth International Airport, Bournemouth, before
which the Buyer has inspected all technical documentation and agreed
that it is to his satisfaction.
4.5 Delivery of the Aircraft shall Include the original historical records
pertaining Aircraft and Engines. Only after the Seller has delivered
the original and complete historical records, and the Buyer has
inspected and accepted the original and complete historical records,
including current AD/SB status of the Aircraft and Engines, as well as
documents showing complete traceability to zero of the Life Limited
Parts of the Aircraft and Engines and all records are accepted by the
Buyer, then the Seller's responsibility for delivery of the Aircraft
will have been completed. The Buyer shall acknowledge such delivery
and acceptance by the execution of Exhibit C.
(2)
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4.6 The Buyer agrees after accepting delivery of the aircraft to remove the
aircraft from the Sellers premises within seven working days, unless
agreed otherwise in writing between the parties. All costs associated
with the removal of the aircraft from the Sellers premises will be to
the cost of the Buyer. In the event that the Buyer is unable to remove
the aircraft after seven days, then the Seller will at its discretion
be able to invoice the Seller parking charges on a per day basis.
5. TITLE AND RISK:
5.1 The Seller warrants that on Delivery of the Aircraft as is it is the
owner of such Aircraft free and clear of all liens charges and
incumbrances, with the exception of a mortgage of 50,000 US Dollars
(fifty thousand United States Dollars) held in favour of United
Airlines in relation to Exhibit G, to enable them to enforce the
conditions of Exhibit G and for this use only.
5.2 Title to the Aircraft and Engines shall be conveyed to the Buyer by the
execution and delivery of a Xxxx of Sale in the form attached as
Exhibit E.
5.3 Possession, property and risk in the Aircraft will pass from the Seller
to the Buyer on Delivery.
6. REPRESENTATIONS AND WARRANTIES:
6.1 The Seller warrants that on Delivery the Aircraft complies with
description.
6.2 Save as expressly provided in this agreement the Aircraft is sold in an
'as is where is' condition.
6.3 To the best of the Sellers knowledge, the Aircraft and engines have not
been subjected to severe stress or heat (as in a major engine failure,
accident or fire) as detailed in Exhibit D.
6.4 The Buyer acknowledges that it has placed no reliance on any statement
or representation whether oral or written made by the Seller or on its
behalf during the negotiations prior to the signing of this agreement,
however, the Buyer has relied throughout this agreement on any
representations and warranties made herein.
(3)
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6.5 The Seller shall assign to the Buyer any and all existing assignable
warranties of manufacturers or overhaul agencies for the Aircraft, the
installed engines and components if any now available to the Seller and
upon request of the Buyer the Seller shall allow the Buyer to enforce
the rights of the Buyer arising under such warranties in the name of
the Seller provided that the Buyer shall indemnify the Seller for any
costs and expense incurred by the Seller as a result. The Seller shall
give notice to any such manufacturer or overhaul agency of the
assignment of such warranties to the Buyer upon reasonable request and
at the cost of the Buyer.
6.6 The Seller represents and warrants
(i) that it is a limited company duly organized and validly formed
and in good standing under the laws of the UK,
(ii) that it has full power and authority to enter into this
Agreement and to carry out the transactions contemplated by this
Agreement, and
(iii) that this Agreement, when executed by the Seller, will be
binding on the Seller and enforceable against the Seller In accordance
with its terms.
6.7 The Seller represents and warrants that at the time of transfer of the
title to the Aircraft to the Buyer, the Seller
(i) will have good and sufficient legal and beneficial tide to the
Equipment free and clear of all mortgages, liens, charges,
incumbencies, subject to Clause 5.1, security interests and other
rights of others, except those incurred by the Buyer or securing claims
of third parties against the Buyer,
(ii) and will have full power and lawful authority to transfer
such title to the Buyer.
7. INDEMNITY, WAIVER AND INSURANCE.
7.1 The Buyer shall indemnify the Seller, its servants or agents and any
third party who has had an interest in the Aircraft prior to Delivery
at all times after Delivery on a full indemnity basis from and against
any liabilities, claims, proceedings, judgements, damages,
obligations, costs and expenses of any nature which may at any time be
incurred by or be imposed on the Seller its servants agents or such
third party arising after Delivery directly or indirectly in any manner
out of the ownership management, control, use or operation of the
Aircraft (either in the air or on the ground) or which may arise after
Delivery on account of any defect or alleged defect in the Aircraft.
7.2 Save the representations and warranties expressly made by the Seller
herein, the Buyer waives any claim which it may have against the
Seller.
(4)
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7.3 The Buyer hereby acknowledges and agrees to comply with the
restrictions to the use of the aircraft as set out in Exhibit G of the
United Airlines' Transfer Restriction Document, and the Buyer further
agrees to indemnify the Seller, or any of its officers from any legal
proceedings, costs, damages, or claims of whatever nature in the event
that the Buyer does not comply with the conditions as contained in
Exhibit G.
8. NOTICES:
8.1 Every notice required to be given under this agreement shall be in
writing and delivered by hand or transmitted by fax to the addresses
and fax numbers as set out at the head of this agreement or to such
other address or fax number as may be notified from time to time by one
party to this agreement to the other.
8.2 Any notice under this agreement shall be deemed to have been received
in the case of a fax transmission at the time of its despatch and in
the case of by hand delivery when so delivered provided that if such
time is not within the addressee's normal business hours in the country
of the addressee it shall be deemed to have been received at the
opening of business on the next business day in such country.
9. MISCELLANEOUS PROVISIONS:
9.1 The Seller's failure at any time to require strict performance by the
Buyer or any provision of this agreement shall not waive or diminish
the Seller's rights subsequently to demand strict performance of that
provision or of any other provision.
9.2 This agreement constitutes the entire agreement between the parties in
relation to the sale of the Aircraft and there have been no
representations, warranties, promises, guarantees or agreements, oral
or written, express or implied, except as set out in this agreement.
9.3 This agreement and its terms and provisions shall be binding on the
successors and assigns of the respective parties to this agreement
except that neither the rights nor the duties of either party to this
agreement may be voluntarily assigned without the prior consent in
writing of the other party.
9.4 If at any time any term or provision of this agreement or the
application of this agreement to any person or circumstances shall to
any extent be invalid or unenforceable under law of jurisdiction the
remainder of this agreement or application of such term or provision to
persons or circumstances other than those to which it is already
invalid or unenforceable and each term and provision of this agreement
shall be valid and enforceable to the fullest extent permitted by law.
(5)
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9.5 The headings to the Clauses of this agreement are for reference only
and do not form part of this agreement.
10. INSPECTION:
10.1 The Buyer has the right to inspect and either accept or reject the
Aircraft or Engines prior the transfer of funds. Such inspection must
take place prior to the delivery date as set forth in Section 4.1. If
the Buyer rejects the Aircraft or Engines for any reason and the Seller
is unwilling or unable to satisfy the Buyer, then the Buyer shall have
the right to cancel this agreement in full with no further obligation
of the Buyer to the Seller and the Seller to the Buyer.
11. INTERPRETATION, APPLICABLE LAW AND JURISDICTION:
11.1 This agreement shall take effect under and be governed by and construed
in accordance with the laws of England and both parties irrevocably
submit to the non-exclusive jurisdiction of the High Court of England.
11.2 Nothing in this agreement shall prevent either party from causing any
action or proceedings In connection with this agreement to be brought
in any other appropriate jurisdiction.
SIGNED ON BEHALF OF EUROPEAN AVIATION LIMITED
/s/ [ILLEGIBLE]
------------------------------------
Managing Director
SIGNED ON BEHALF OF AMERICAN AIRCARRIERS SUPPORT
/s/ [ILLEGIBLE]
------------------------------------
President
(6)
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EXHIBIT D
(REF: 6.3)
REPRESENTATIONS AND WARRANTIES
EUROPEAN AVIATION HEREBY confirm that to the best of our knowledge the two
Boeing 737-200 Series Aircraft, Serial Numbers 19934 and 19953, equipped with
four JT8D-7B Series engines bearing manufacturer's Serial Numbers 653333,
656097, 653545 and 655977, sold to AMERICAN AIRCARRIERS SUPPORT INCORPORATED,
have not been subjected to severe stress or heat (as in a major engine failure,
accident or fire).
ON BEHALF OF EUROPEAN AVIATION LIMITED
SIGNED /s/ [ILLEGIBLE]
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TITLE MANAGING DIRECTOR
------------------------------
DATE 26/3/98
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EXHIBIT E
(REF: 5.2)
AIRCRAFT SALE AGREEMENT
BETWEEN
EUROPEAN AVIATION LIMITED
("SELLER")
AND
AMERICAN AIRCARRIERS SUPPORT INCORPORATED
("BUYER")
FORM OF EQUIPMENT XXXX OF SALE
KNOW ALL PERSONS BY THESE PRESENT:
The Seller is the owner of the full and legal and beneficial title to
two(2) 737-200 Aircraft, serial numbers 19934 and 19953, equipped with four
JT8D-7B Series engines bearing manufacturer's serial numbers 653333, 656097,
653545 and 655977, plus basic accessories and applicable records (the
"Equipment").
THAT for and in consideration of $2,200,000.00 US Dollars the Seller
does this 27th day of March, 1998, grant, convey, transfer, bargain and sell,
deliver and set over, all of its right, title and interest in and to the
Equipment to the Buyer.
THAT the Seller hereby warrants to the Buyer, its successors and
assigns, that there is hereby conveyed to the Buyer title to the Equipment free
and clear of all liens, encumbrances, and rights of others and that the Seller
will warrant and defend such title forever against all claims and demands
whatsoever.
THAT this Equipment Xxxx of Sale is made and delivered pursuant to the
provisions of the Aircraft Sale Agreement between the Buyer and the Seller
dated 27th March 1998.
IN WITNESS HEREOF, the Seller has caused this Equipment Xxxx of Sale to
be executed by its duly authorized officer this 27th day of March, 1998.
ON BEHALF OF EUROPEAN AVIATION LIMITED
SIGNED /s/ [ILLEGIBLE]
----------------------------
TITLE MANAGING DIRECTOR
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United Air Lines, Inc./ European Aviation Ltd. 737 Aircraft
Purchase and Sale Agreement Page 12
EXHIBIT G
FORM OF ACKNOWLEDGEMENT OF TRANSFER RESTRICTIONS
ACKNOWLEDGEMENT OF TRANSFER RESTRICTIONS
To: United Air Lines, Inc.
0000 X. Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxxx, XX 00000
Reference is hereby made to Article XI of that certain Aircraft Purchase and
Sale Agreement dated as of August ____, 1997 (the "PURCHASE AGREEMENT") between
United Air Lines, Inc. ("UNITED") and European Aviation Ltd. ("EUROPEAN
AVIATION") regarding, among other things, one Boeing 737-222 aircraft bearing
Manufacturer's Serial Number 19934, together with two Xxxxx & Xxxxxxx Model
JT8D-7B engines installed therein (the "AIRCRAFT"), [European Aviation Ltd.]
[__________, A UNITED KINGDOM corporation (the "TRANSFEROR")] hereby gives
United notice that it proposes to transfer its interest in the Aircraft to
American Aircarriers Support, a ____________ (the "TRANSFEREE") pursuant to that
certain _____________ dated ______________.
Transferee hereby agrees as follows:
1. Transferee represents and warrants that (a) it is either (i) a broker,
lessor or agent or (ii) an entity which provides passenger air transportation
but will not operate the Aircraft as a provider of air transportation within
the United States and (b) it is not a U.S. Air Carrier (as defined below).
2. Transferee covenants that, for the period from the date of this Agreement to
November 11, 2000 (the "RESTRICTED PERIOD"): (a) the Aircraft will not be
operated in passenger service in the United States, (b) no Aircraft will be
sold, leased or otherwise transferred by Transferee to a United States air
carrier (or its corporate parent or affiliate) which operates passenger service
(a) "U.S. AIR CARRIER") and (c) any Aircraft that is sold, leased or otherwise
transferred by Transferee to either (i) a broker, lessor or agent or (ii) an
entity which provides passenger air transportation but will not operate the
aircraft as a provider of air transportation within the United States (the
"OTHER OWNER") shall be transferred to the Other Owner subject to the
restrictions of this Agreement applicable to such Other Owner as if it were
"Transferee" hereunder.
3. Transferee agrees not convey any Aircraft to such Other Owner unless and
until such Other Owner executes and delivers to United an Acknowledgment of
Transfer Restrictions substantially in the form of this Agreement (the
"ACKNOWLEDGEMENT"), pursuant to which such Other Owner shall agree to abide by
the restrictions set forth in this Agreement as if it were "Transferee"
hereunder and the restrictions set forth in Section 11.1 of the Purchase
Agreement
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United Air Lines, Inc./ European Aviation Ltd. 737 Aircraft Page 13
Purchase and Sale Agreement
as if it were "Buyer" thereunder, which restrictions shall be applicable
through the Restricted Period.
4. Should any owner, operator or other transferee subsequent to the
Transferee (the "SUBSEQUENT OPERATOR")operate the Aircraft in violation of the
restrictions of this Agreement and Section 11.1 of the Purchase Agreement,
United's recourse shall be to the Subsequent Operator; provided Transferee has
complied with the requirements of this Agreement and Section 11.1 of the
Purchase Agreement. Transferee agrees to assist United, at United's expense, in
legally pursuing its rights with respect to the Subsequent Operator.
5. Transferee acknowledges and agrees and, by its execution and delivery
of an Acknowledgement, each Subsequent Owner shall acknowledge and agree, that
the restrictions on use and transfer of the Aircraft, as set forth in this
Agreement and Article XI of the Purchase Agreement (the "RESTRICTIONS"), are
reasonable and are required for the reasonable protection of United. Transferee
further acknowledges and agrees that the sale and transfer of the Aircraft as
contemplated by the Purchase Agreement is special, unique and of an
extraordinary character in the aviation industry and that in the event of any
breach or violation of any Restriction, United will be irreparably harmed and
monetary damages would be inadequate to compensate United for such harm.
Accordingly, any breach or violation of any of the Restrictions by either
Transferee or any Subsequent Owner shall result in irreparable injury to
United and United shall be entitled to equitable relief, including without
limitation specific performance of the Restrictions, to enjoin any person or
entity from performing any act prohibited by the Restrictions; provided however
that such remedy shall not be deemed to be the exclusive remedy for any breach
or violation of the Restrictions, but shall be in addition to all other
remedies available at law or equity to United.
6. Transferee acknowledges, and by its execution and delivery of an
Acknowledgement, each Subsequent Owner shall acknowledge, that United may incur
substantial costs and expenses (including, without limitation, legal fees and
expenses) in enforcing the Restrictions. Transferee hereby agrees, and, by its
execution and delivery of an Acknowledgment, each Subsequent Owner shall agree,
that it shall reimburse United for all such costs and expenses.
* * *
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United Air Lines, Inc./ European Aviation Ltd. 737 Aircraft Page 14
Purchase and Sale Agreement
IN WITNESS WHEREOF, each of the undersigned parties has caused this
Agreement to be duly executed this 26 day of March, 1998
EUROPEAN AVIATION LTD.
[TRANSFEROR]
By: /s/[ILLEGIBLE]
-----------------------
Its: MANAGING DIRECTOR
----------------------
[TRANSFEREE]
By: /s/ [ILLEGIBLE]
-----------------------
Its: PRESIDENT
----------------------
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United Air Lines, Inc./ European Aviation Ltd.737 Aircraft
Purchase and Sale Agreement Page 12
EXHIBIT G
FORM OF ACKNOWLEDGEMENT OF TRANSFER RESTRICTIONS
ACKNOWLEDGEMENT OF TRANSFER RESTRICTIONS
To: United Air Lines, Inc.
0000 X. Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxxx, XX 00000
Reference is hereby made to Article XI of that certain Aircraft Purchase and
Sale Agreement dated as of August __, 1997 (the "PURCHASE AGREEMENT") between
United Air Lines, Inc. ("UNITED") and European Aviation Ltd. ("EUROPEAN
AVIATION") regarding, among other things, one Boeing 737-222 aircraft bearing
Manufacturer's Serial Number 19953, together with two Xxxxx & Whitney Model
JT8D-7B engines installed therein (the "AIRCRAFT"). [European Aviation Ltd.]
[____________, a United Kingdom corporation (the "TRANSFEROR")] hereby gives
United notice that it proposes to transfer its interest in the Aircraft to
American Aircarriers Support, a USA Corporation (the "TRANSFEREE") pursuant to
that certain _____________ dated 27/3/98.
Transferee hereby agrees as follows:
1. Transferee represents and warrants that (a) it is either (i) a broker,
lessor or agent or (ii) an entity which provides passenger air transportation
but will not operate the Aircraft as a provider of air transportation within
the United States and (b) it is not a U.S. Air Carrier (as defined below).
2. Transferee covenants that, for the period from the date of this
Agreement to November 11, 2000 (the "RESTRICTED PERIOD"): (a) the Aircraft will
not be operated in passenger service in the United States, (b) no Aircraft will
be sold, leased or otherwise transferred by Transferee to a United States air
carrier (or its corporate parent or affiliate) which operates passenger service
(a "U.S. AIR CARRIER") and (c) any Aircraft that is sold, leased or otherwise
transferred by Transferee to either (i) a broker, lessor or agent or (ii) an
entity which provides passenger air transportation but will not operate the
aircraft as a provider of air transportation within the United States (the
"OTHER OWNER") shall be transferred to the Other Owner subject to the
restrictions of this Agreement applicable to such Other Owner as if it were
"Transferee" hereunder.
3. Transferee agrees not convey any Aircraft to such Other Owner unless
and until such Other Owner executes and delivers to United an Acknowledgment of
Transfer Restrictions substantially in the form of this Agreement (the
"ACKNOWLEDGEMENT"), pursuant to which such Other Owner shall agree to abide by
the restrictions set forth in this Agreement as if it were "Transferee"
hereunder and the restrictions set forth in Section 11.1 of the Purchase
Agreement
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United Air Lines, Inc./ European Aviation Ltd. 737 Aircraft
Purchase and Sale Agreement Page 13
as if it were "Buyer" thereunder, which restrictions shall be applicable
through the Restricted Period.
4. Should any owner, operator or other transferee subsequent to the
Transferee (the "SUBSEQUENT OPERATOR") operate the Aircraft in violation of the
restrictions of this Agreement and Section 11.1 of the Purchase Agreement,
United's recourse shall be to the Subsequent Operator; provided Transferee has
complied with the requirements of this Agreement and Section 11.1 of the
Purchase Agreement. Transferee agrees to assist United, at United's expense, in
legally pursuing its rights with respect to the Subsequent Operator.
5. Transferee acknowledges and agrees and, by its execution and delivery
of an Acknowledgement, each Subsequent Owner shall acknowledge and agree, that
the restrictions on use and transfer of the Aircraft, as set forth in this
Agreement and Article XI of the Purchase Agreement (the "RESTRICTIONS"), are
reasonable and are required for the reasonable protection of United. Transferee
further acknowledges and agrees that the sale and transfer of the Aircraft as
contemplated by the Purchase Agreement is special, unique and of an
extraordinary character in the aviation industry and that in the event of any
breach or violation of any Restriction, United will be irreparably
harmed and monetary damages would be inadequate to compensate United for such
harm. Accordingly, any breach or violation of any of the Restrictions by either
Transferee or any Subsequent Owner shall result in irreparable injury to
United and United shall be entitled to equitable relief, including without
limitation specific performance of the Restrictions, to enjoin any person or
entity from performing any act prohibited by the Restrictions; provided however
that such remedy shall not be deemed to be the exclusive remedy for any breach
or violation of the Restrictions, but shall be in addition to all other
remedies available at law or equity to United.
6. Transferee acknowledges, and by its execution and delivery of an
Acknowledgement, each Subsequent Owner shall acknowledge, that United may
incur substantial costs and expenses (including, without limitation, legal fees
and expenses) in enforcing the Restrictions. Transferee hereby agrees, and, by
its execution and delivery of an Acknowledgement, each Subsequent Owner shall
agree, that it shall reimburse United for all such costs and expenses.
* * *
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United Air Lines, Inc./ European Aviation Ltd. 737 Aircraft
Purchase and Sale Agreement Page 14
IN WITNESS WHEREOF, each of the undersigned parties has caused this
Agreement to be duly executed this 26 day of March 1998.
EUROPEAN AVIATION LTD.
[TRANSFEROR]
By: /s/ [ILLEGIBLE]
----------------------
Its: MANAGING DIRECTOR
---------------------
[TRANSFEREE]
By: /s/ [ILLEGIBLE]
----------------------
Its: PRESIDENT
---------------------
