FLOOR PLAN FINANCE AGREEMENT
This Floor Plan Finance Agreement
(“Agreement”) is between AVANTAIR, INC., 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
XX 00000, Telephone: 000-000-0000, Fax: 000-000-0000, hereinafter
referred to as the "Borrower," and MIDSOUTH SERVICES, INC., or assigns, 000
Xxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000, Telephone: 000-000-0000, Fax:
000-000-0000, hereinafter referred to as the "Lender." Escrow agent
will be INSURED AIRCRAFT TITLE SERVICE, 0000 X.X. 00xx Xxxxxx,
Xxxxxxxx Xxxx, XX 00000, Telephone: 000-000-0000,
Fax: 000-000-0000, hereinafter referred to as the "Escrow
Agent."
WHEREAS, the Borrower has
certain Piaggio P-180 Aircraft beginning with Unit #46 with Serial Number 1174
and U.S. Registration Number N188SL (“Aircraft”) that they elect to finance
pursuant to this Agreement beginning on or about April 1, 2009 (“Initial
Delivery”). The Net Purchase Price for the Aircraft is attached as
“Attachment A”;
WHEREAS, Lender shall loan
Borrower the Net Purchase Price on the actual delivery date of each Aircraft
listed on Attachment A (“Delivery Date”) pursuant to the terms and conditions of
this Agreement.
Now
therefore, in consideration of the terms and conditions herein contained, the
parties agree as follows:
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1.
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Term. The
term of this Agreement shall commence on the actual date of the Initial
Delivery for N188SL and shall terminate automatically twelve (12) months
thereafter or on the date that the Net Purchase Price is paid to Lender
pursuant to this Agreement, whichever is later
(“Term”).
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2.
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Purchase
Price. On or
before each Delivery Date, Lender agrees to pay an amount up to the Net
Purchase Price as specified on Attachment A for the applicable Aircraft.
Borrower shall provide Lender with an invoice from Piaggio America
indicating the balance due for the purchase of the
Aircraft. Lender shall have the option to wire the Net Purchase
Price directly to Piaggio America on the Delivery Date in lieu of using
the Escrow Account, which shall be determined at their sole
discretion. Borrower shall notify Lender at least ten (10) days
prior to the anticipated Delivery Date of their intention to have Lender
loan the Net Purchase Price for an Aircraft. In addition, it is agreed
between the parties that Lender shall only be required to loan the Net
Purchase Price for one Aircraft at a time pursuant to this Floor Plan
Finance Agreement. However, Lender agrees to loan the Net
Purchase Price for each Aircraft listed on Attachment A assuming that
Borrower relinquishes the debt for the prior Aircraft prior to Lender
loaning the Net Purchase Price for the subsequent
Aircraft.
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3.
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Transaction
Fee. As
consideration for Lender providing the Net Purchase Price for the Aircraft
during the Term of this Agreement, Borrower agrees to pay Lender a monthly
fee in the amount of Eighty Two Thousand Five Hundred U.S. Dollars
($82,500.00) (“Transaction Fee”). The initial Transaction Fee
shall be due in arrears one month after the Delivery Date of N188SL, which
shall be on or around May 2, 2009. After the Delivery Date of
N188SL, the payment of the Transaction Fee shall be due each month
thereafter for the remainder of the Term. Borrower shall remit
the Transaction Fee to Lender via wire
transfer.
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4.
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Insurance. Borrower
shall maintain adequate insurance on the Aircraft and provide Lender and
Lender’s financial institution with a Certificate of Insurance listing
Lender’s financial institution as lien holder and Lender as an additional
insured.
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5.
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Title
and Liens. Borrower
agrees that on the Actual Delivery Date, Lender shall be permitted to file
a lien on the Aircraft securing the amount of the Net Purchase Price paid
to manufacturer. On the Actual Delivery Date, Borrower and
Lender may agree to allow title to transfer from Piaggio America to
MidSouth Services, Inc, instead of from Piaggio America to Avantair,
Inc. All liens imposed on the Aircraft by Lender must be
removed on or before the date that Borrower repays the Net Purchase Price
to Lender so that Borrower has free and clear title to the Aircraft,
unless Borrower is in default by not paying the Transaction Fee after
given a ten (10) day period to cure the default as set forth in Section 7
below.
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6.
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Release
of Liens. Prior to
the date that Borrower repays the Net Purchase Price to Lender (“Avantair
Actual Delivery Date”), Lender will place any required Release(s) of Lien
with Escrow Agent. Lender shall be notified at least seven (7)
days prior to the Avantair Actual Delivery Date. Lender hereby
agrees to fully cooperate with Borrower and Escrow Agent to effect, amend,
discharge and/or consent to registrations with respect to the Aircraft on
the International Registry for the benefit of Borrower and/or their
fractional owners. Lender also shall provide a letter of
instruction to the Escrow Agent or any other person designated by Lender
granting the person authority to release any and all liens on the Aircraft
that were imposed by Lender in the event of Lender’s death or incapacity
which could preclude such release of
liens.
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7.
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Default. Upon
failure of Lender, without default by Borrower, to comply with the terms
and conditions of this Agreement, Borrower may elect to cancel this
agreement upon written notice to Lender, however, no breach shall be
deemed to have occurred until Lender has ten (10) days to cure, which
shall run from the date of receipt of written notice (e-mail or facsimile
acceptable). Borrower retains the right to retain any
Transaction Fees owed to Lender, not as forfeiture, but as liquidated
damages for Borrower’s breach of this
Agreement.
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Upon
failure of the Borrower, without default of Lender, to comply with the
terms and conditions of this Agreement, Lender may elect to cancel this
agreement upon written notice to Borrower, however, no breach shall be
deemed to have occurred until Borrower has ten (10) days to cure, which
shall run from the date of receipt of written notice (e-mail or facsimile
acceptable). In the event of a breach by Borrower, Lender shall
be permitted to use any adequate remedy at law to recover damages caused
by the breach. Borrower shall position blank bills of sale with
the Escrow Agent so that title in the Aircraft may be transferred to
Lender in the event that Borrower’s material default of this Agreement
remains uncured following Lender’s notice to
cure.
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8.
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Excusable
Delay. Neither
Lender nor Borrower shall be liable to each other for any failure or delay
in performing any of their obligations hereunder caused by an act of God,
the public enemy, strike or labor dispute, governmental regulation or
priorities and force majeure not involving the fault or negligence of
either party.
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9.
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Assignment. This
Agreement may not be assigned and any purported assignment shall be
without force or legal effect unless the assignment is approved in writing
by both parties.
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10.
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Amendment. This
Agreement shall not be modified or amended except by themutual consent of
the parties in writing.
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11.
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Partial
Illegality. If any one
or more provisions of this Agreement shall be found to be illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or
impaired.
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12.
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Notification. For the
purposes of negotiating and finalizing this Agreement, any document,
including this Agreement, transmitted by facsimile or e-mail, shall be
treated in all manner and respects as an original document. The
signature of any party on such document shall be considered for these
purposes as an original signature. Any such document shall be considered
to have the same binding legal effect as an original document. At the
request of either party, any such document shall be re-executed by both
parties in the original form. In consideration of the promises
made and value received hereunder, the undersigned parties hereby agree
that, after a document has been executed and transmitted by facsimile or
e-mail, neither party shall raise the use of a facsimile or e-mail, or the
lack of a document bearing an original signature, as a defense to this
Agreement and forever waive such
defense.
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13.
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International
Registry. Borrower
and Lender shall comply with the Cape Town Convention Protocol for
International Registry Regulations and Procedures regarding the
International Registration of the Aircraft prior to
closing. Each party shall bear the cost for registration of
their company with the International Registry and any fees associated
therewith.
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14.
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General.
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A.
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In
all respects, time shall be of the essence in this
Agreement.
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B.
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This
agreement shall bind and inure to the benefit of the parties hereto and
their
executors, administrators, heirs and
assigns.
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C.
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This
agreement may be executed in two or more counterparts, each of which shall
be deemed an original and shall be effective when executed by both
parties.
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D.
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This
agreement shall supersede the previous Floor Plan Finance Agreement dated
July 30th,
2008, which shall automatically terminate on the date of mutual execution
of this Agreement.
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Signed,
sealed and delivered this 2nd day of
April, 2009.
BORROWER:
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LENDER:
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MIDSOUTH
SERVICES, INC.
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/s/ Xxxxxx Xxxxx
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/s/ Xxxx Xxxxxx
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Signature
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Signature
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C.E.O.
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President
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Title
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Title
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April 2, 2009
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April 2, 2009
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Date
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Date
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