PURCHASE AGREEMENT (N14645) dated as of December 1, 2006 between PLM CAL I LLC, as Seller, and DOUGHERTY AIR TRUSTEE, LLC, as Purchaser One (1) Boeing model 737-524 Aircraft Manufacturer’s Serial Number 28906
EXHIBIT
10.1
PURCHASE
AGREEMENT (N14645)
dated
as
of December 1, 2006
between
PLM
CAL I LLC,
as
Seller,
and
XXXXXXXXX
AIR TRUSTEE, LLC,
as
Purchaser
_______________________________
One
(1)
Boeing model 737-524 Aircraft
Manufacturer’s
Serial Number 28906
_______________________________
1
Section
1.1.Defined
Terms1
ARTICLE IISALE
AND
PURCHASE; OTHER AGREEMENTS4
Section
0.0.Xxxx
and
Purchase4
Section
2.2.Acquisition
Price; Payment4
Section
0.0.Xxxx
Payments5
Section
2.4.Taxes5
ARTICLE IIICLOSING;
CONDITIONS TO CLOSING5
Section
3.1.Closing5
Section
3.2.Seller’s
Conditions to Closing6
Section
3.3.Purchaser’s
Conditions to Closing7
ARTICLE IVREPRESENTATIONS,
WARRANTIES AND COVENANTS8
Section
4.1.Representations,
Warranties and Covenants of Seller8
Section
4.2.Representations,
Warranties and Covenants of Purchaser10
ARTICLE VRESERVED
RIGHTS12
Section
5.1.Reserved
Rights12
Section
5.2.Allocation
of Amounts12
Section
5.3.Indemnification12
Section
0.0.Xxxxxx
Cooperation12
ARTICLE VIMISCELLANEOUS13
Section
6.1.Transaction
Costs13
Section
6.2.Brokers,
Finders, Etc.13
Section
6.3.Announcements13
Section
6.4.Counterparts13
Section
6.5.Amendments,
Etc.; Entire Agreement13
Section
6.6.Successors
and Assigns14
Section
6.7.Governing
Law; Submission to Jurisdiction14
Section
6.8.WAIVER
OF
JURY TRIAL14
Section
6.9.Notices,
Etc.15
Section
6.10.Severability
of Provisions16
Section
6.11.Headings,
Etc.16
Section
6.12.Further
Assurances; Confidentiality16
Section
6.13.Survival17
Section
6.14.Counterparts17
2
SCHEDULES
AND EXHIBITS
|
SCHEDULE
1
|
Transaction
Documents
|
|
SCHEDULE
2
|
Financial
Information
|
|
EXHIBIT
A
|
Form
of Assignment and Assumption Agreement
|
|
EXHIBIT
B
|
Form
of Tax Indemnity Agreement
Assignment
|
3
PURCHASE
AGREEMENT (N14645)
THIS
PURCHASE AGREEMENT (N14645), dated
as
of December 1, 2006 (this “Agreement”),
is by
and between PLM
CAL I LLC,
a
Delaware limited liability company (“Seller”)
and
XXXXXXXXX
AIR TRUSTEE, LLC, a
Delaware limited liability company, not in its individual capacity, but solely
as the investment trustee under the Investment Trust Agreement (“Purchaser”).
WHEREAS,
Seller
owns the beneficial interest in the trust estate created pursuant to the Trust
Agreement 645 listed on Schedule 1 hereto;
WHEREAS,
upon
the terms and subject to the conditions set forth herein, Seller desires to
sell, assign, transfer, convey and set over to Purchaser, and Purchaser desires
to purchase, accept and assume from Seller, Seller’s right, title and interest
in and to such beneficial interest;
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements herein contained and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, subject to the terms and conditions set forth herein,
the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section
1.1. Defined
Terms.
(a) The
following terms shall have the following meanings for all purposes of this
Agreement:
“Acquisition
Price”
shall
have the meaning set forth in Section 2.2(a).
“Aircraft”
means
that certain Boeing 737-524 aircraft bearing manufacturer’s serial number 28906
and Federal Aviation Administration Registration Number N14645 and two CFM
International, Inc. CFM 56-3-B1 model engines bearing manufacturer’s serial
numbers 858653 and 858654, respectively.
“Applicable
Law”
means
all applicable laws of any Governmental Authority, including, without
limitation, federal, state and foreign securities laws, tax laws, tariff and
trade laws, ordinances, judgments, decrees, injunctions, writs and orders or
like actions of any Governmental Authority and rules, regulations, orders,
interpretations, licenses, and permits of any federal, regional, state, county,
municipal or other Governmental Authority.
“Assignment
and Assumption Agreement”
means
an assignment and assumption agreement with respect to the Equity Interest
Transfer, substantially in the form of Exhibit A hereto.
“Business
Day”
means
any day other than a Saturday, Sunday or other day on which commercial banks
are
authorized or required by law to close in New York, New York, Minneapolis,
Minnesota, Wilmington, Delaware or Salt Lake City, Utah.
4
“Citizen
of the United States”
means a
“citizen of the United States” within the meaning of 49 U.S.C. §
40102(a)(15).
“Closing
Date”
means
the date on which the Equity Interest Transfer is consummated, which date shall
be a Business Day specified by Seller and reasonably acceptable to Purchaser
(and which date shall be on or before December 1, 2006, unless Seller and
Purchaser agree to a later date).
“Equity
Interest”
means
all of the beneficial interest in the Trust Estate and all of Owner
Participant’s right, title and interest in, to and under the Transaction
Documents (including, without limitation, the Trust Agreement, but excluding
Reserved Rights) arising from and after the Closing Date.
“Equity
Interest Transfer”
means
the transfer, sale and assignment from Seller to Purchaser of the Equity
Interest as contemplated by, and subject to the terms and conditions of, this
Agreement and the Assignment and Assumption Agreement.
“Event
of Loss”
means
an “Event of Loss” under any Transaction Document.
“FAA”
shall
have the meaning assigned to such term in the Participation
Agreement.
“Governmental
Authority”
means
any nation or government (including any state or other political subdivision
of
either thereof) and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
“Guarantor”
means
Tennessee Commerce Bank, a Tennessee banking association.
“Guaranty”
means
that certain Guaranty (N14645) dated as of even date hereof in form and
substance reasonably satisfactory to Lessee, Owner Trustee, and Mortgagee,
providing for the guaranty by Guarantor of Purchaser’s obligations under the
Transaction Documents.
“Indebtedness”
means
the
amount set forth in Schedule 2 hereto.
“International
Registry”
has the
meaning set forth in the Cape Town Convention on International Interests in
Mobile Equipment and the related Aircraft Equipment Protocol, as in effect
in
the United States.
“Investment
Trust Agreement”
means
that certain Investment Trust Agreement as to Xxxxxxxxx Air III Investment
Trust, dated as of December 1, 2006, between Xxxxxxxxx Air Trustee, LLC and
First Technology Capital, Inc.
“Lease”
means
the Lease Agreement 645 listed on Schedule 1 hereto.
“Lessee”
means
Continental Airlines, Inc.
“Lien”
means
any mortgage, pledge, security interest, charge, lien or other
encumbrance.
“Owner
Participant”
shall
have the meaning assigned to such term in the Participation
5
Agreement.
“Owner
Trustee”
means
Xxxxx Fargo Bank Northwest, National Association, as successor to First Security
Bank, National Association, not in its individual capacity except as otherwise
expressly provided but solely as Owner Trustee.
“Participation
Agreement”
means
the Participation Agreement 645 listed on Schedule 1 hereto.
“Person”
means
any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
any Governmental Authority or any political subdivision thereof.
“Reserved
Rights”
means
any and all rights and interests of Seller in respect of the following:
(i) Seller’s right to tax and other indemnification under any Transaction
Document as a result of or arising out of events occurring or circumstances
existing prior to the Closing Date (or claim asserted against Seller with
respect to a matter subsequent to such Closing Date, if Seller would otherwise
be entitled to indemnification for such claim under a Transaction Document),
(ii) each and every obligation of Lessee to provide liability insurance on
behalf of or in favor of Seller as an additional insured under any Transaction
Document, (iii) any interest payable by Lessee on any amount referred to in
clauses (i) and (ii) above, and (iv) the right to enforce payment of the
amounts referred to in clauses (i) through (iii) above.
“Tax
Indemnity Agreement”
means
the Tax Indemnity Agreement 645 listed on Schedule 1 hereto.
“Tax
Indemnity Agreement Assignment”
means
that certain Tax Indemnity Agreement 645 Assignment dated as of even date hereof
in a form acceptable to Purchaser and Lessee.
“Transaction
Documents”
means,
collectively, the documentation identified as such on Schedule 1 attached
hereto.
“Transfer
Documents”
means,
collectively, this Agreement, the Assignment and Assumption Agreement, the
Guaranty and Tax Indemnity Agreement Assignment.
“Trust
Agreement”
means
the Trust Agreement 645 listed on Schedule 1 hereto.
“Trust
Estate”
shall
have the meaning set forth in the Trust Agreement.
“Trust
Indenture”
means
the Trust Indenture and Mortgage 645 listed on Schedule 1 hereto.
(a) Capitalized
terms used herein to the extent not defined above shall have the meaning
specified in the Participation Agreement (as such terms are defined, by
reference to another document or otherwise).
(b) Unless
otherwise indicated, all references in this Agreement to sections, paragraphs,
clauses, schedules, appendices and exhibits are to sections, paragraphs,
clauses,
6
schedules,
appendices and exhibits in and to this Agreement.
ARTICLE II
SALE
AND PURCHASE; OTHER AGREEMENTS
Section
2.1 Sale
and Purchase.
(a) Sale
of Equity Interest.
Subject
to the terms and conditions set forth herein and in the Assignment and
Assumption Agreement (including, without limitation, satisfaction of the
conditions precedent set forth herein and in the Assignment and Assumption
Agreement), on the Closing Date, Seller hereby agrees to sell, convey, assign,
transfer and set over unto Purchaser, as of the Closing Date, the Equity
Interest.
(b) Purchase
of Equity Interest.
Subject
to the terms and conditions set forth herein and in the Assignment and
Assumption Agreement (including, without limitation, satisfaction of the
conditions precedent set forth herein), on the Closing Date, Purchaser hereby
agrees to purchase and accept from Seller, as of the Closing Date, the Equity
Interest.
(c) Closing.
The
closing and effectiveness (“Closing”)
of the
Equity Interest Transfer contemplated hereby shall take place (i) upon the
execution and delivery of the Assignment and Assumption Agreement, (ii) upon
satisfaction (or waiver) of the conditions precedent set forth herein and in
the
Assignment and Assumption Agreement, and (iii) on the Closing Date. In the
event
that the Closing does not take place on or before November 30, 2006, this
Agreement shall automatically terminate and be of no further effect with the
exception of the obligations under Sections 6.1 and 6.12, hereof, which shall
survive termination.
Section
2.2. Acquisition
Price; Payment.
(a) Acquisition
Price for the Equity Interest.
The
purchase price payable by Purchaser to Seller for the Equity Interest on the
Closing Date (the “Acquisition
Price”)
shall
be the amount set forth in Schedule 2 attached hereto. The Acquisition Price
for
the Equity Interest shall be payable by Purchaser in lawful dollar currency
of
the United States of America in the manner contemplated by, and to Seller’s
account specified in, paragraph (b) of this Section 2.2.
(b) Payment
Instructions.
Payment
of the Acquisition Price on the Closing Date shall be made to the account of
Seller by wire transfer of immediately available funds, without deduction or
withholding of any kind, to the following account or any other account and
in
such other manner as Seller may direct:
Bank: Comerica
Bank
ABA
Number: 000000000
Account
Number: 1891533166
Account
Name: PLM
International, Inc.
Reference: N14645
(c) Event
of Loss.
In the
event of an Event of Loss with respect to the Aircraft prior to the Closing
Date, the obligations of Purchaser and Seller hereunder (except under
Section 6.12(b)) shall terminate.
7
Section
2.3 Rent
Payments.
All
Rent due prior to the Closing Date will be for the account of Seller regardless
of when paid by Lessee and all Rent due on or after the Closing Date will be
for
the Account of Purchaser regardless of when paid by Lessee. If either Purchaser
or Seller receives from Lessee any Rent for the account of the other party,
such
other party receiving such Rent shall pay the amount received to the other
party
within three Business Days after receipt.
Section
2.4 Taxes.
Seller
shall be responsible for payment of and shall pay (at no after-tax cost to
Purchaser, Owner Trustee or the Trust Estate (collectively, the “Tax
Indemnitees”
and,
individually, a “Tax
Indemnitee”)
any
and all license, recording and documentation fees, and sales, use, excise,
transfer, value added, gross receipts, property or any other similar taxes,
fees
or charges imposed on or with respect to the Aircraft, or the ownership,
leasing, use or operation thereof or the rentals derived therefrom (hereinafter,
individually, a “Covered
Tax”,
and
collectively, “Covered
Taxes”)
imposed by the United States federal or any state or local government or taxing
authority upon or in respect of the sale, assignment or transfer of the Equity
Interest as contemplated hereby (provided, however, that Seller shall not be
responsible for any (a) taxes based on, measured by, or with respect to net
or gross income or capital of such Tax Indemnitee or (b) taxes related to
the Aircraft and arising after the Closing). Seller shall indemnify each Tax
Indemnitee against the imposition of any Covered Tax immediately upon receipt
of
such Indemnitee’s demand therefor, which demand shall be accompanied by
documentation evidencing the imposition of such Covered Tax. Subject to the
scheduled locations of the equipment constituting the Trust Estate on the
Closing Date, Purchaser agrees to cooperate with Seller concerning the time
of
closing of the transaction contemplated hereby on the Closing Date so as to
eliminate or minimize the imposition of any Taxes that otherwise might be
imposed upon or in respect of the Equity Interest Transfer as contemplated
hereby.
If
Seller
disputes the payment of any Covered Taxes payable by Seller or Purchaser for
which Seller is responsible under this Agreement, Seller shall have the right,
at Seller’s expense, to contest the payment of such Covered Taxes, provided that
(i) Purchaser in its sole discretion considers that such contest shall not
materially prejudice it or result in any risk of criminal penalty or danger
of
sale, forfeiture or loss of the Aircraft or Equity Interest, (ii) Seller
has provided Purchaser with an opinion, reasonably satisfactory to Purchaser,
that it is more likely than not that the contest will be successful, and
(iii) Seller has made adequate provision to the satisfaction of Purchaser
in respect of the expenses concerned.
ARTICLE III
CLOSING;
CONDITIONS TO CLOSING
Section
3.1 Closing.
The
closing in respect of the Equity Interest Transfer shall commence at such time
as Seller and Purchaser may mutually agree on the Closing Date.
Section
3.2 Seller’s
Conditions to Closing.
The
obligation of Seller to sell, convey, assign, transfer and set over the Equity
Interest to Purchaser on the Closing Date is subject to the satisfaction (to
the
reasonable satisfaction of Seller) or the waiver by Seller of the following
conditions precedent:
8
(a) Representations
and Warranties.
The
representations and warranties of Purchaser contained herein and in all
other Transfer Documents to which Purchaser is a party and of the Guarantor
contained in the Guaranty shall be true and correct as of the Closing Date
with
the same force and effect as though made on and as of the Closing Date, except
to the extent that any such representation or warranty relates solely to an
earlier date in which case such representation or warranty shall have been
true
and correct on and as of such earlier date.
(b) Due
Authorization.
Seller
shall have received (i) a copy of the articles of organization and operating
agreement of Purchaser, (ii) a good standing certificate for Purchaser in the
state of Delaware, and (iii) such officer or incumbency certificates as may
be
necessary to establish the authority of the Purchaser’s signatories to the
Transfer Documents.
(c) Consents
and Approvals.
All
approvals and consents which are required under the Transaction Documents in
connection with the transaction contemplated by this Agreement, and the other
Transfer Documents, shall have been duly obtained, given, accomplished or
waived.
(d) No
Default.
Purchaser shall not be in default of any of its obligations hereunder or under
any of the Transfer Documents to which it is a party and Guarantor shall not
be
in default of any of its obligations under the Guaranty. No Default or Event
of
Default as defined in the Transaction Documents shall have occurred and be
continuing and each of the Transaction Documents shall be in full force and
effect.
(e) Acquisition
Price.
Seller
shall have received the Acquisition Price relating to the Equity Interest to
be
transferred on the Closing Date in the manner contemplated by, and to the
account specified in, Section 2.2 herein.
(f) Guaranty.
Purchaser shall have caused the Guarantor to provide the Guaranty to Lessee,
Owner Trustee and Mortgagee.
(g) Litigation. No
action, proceeding or investigation shall have been instituted or threatened
by
any Person before any Governmental Authority, nor shall any order, writ,
judgment or decree have been issued or proposed to be issued by any Governmental
Authority as of the Closing Date, which in any case questions the validity
or
legality of this Agreement, the transactions contemplated hereby or by the
Transaction Documents or the ability of either party hereto to consummate any
of
such transactions.
(h) Assignment
and Assumption Agreement.
Seller
shall have received this Agreement and the Assignment and Assumption Agreement,
in each case duly executed and delivered by Purchaser. The Assignment and
Assumption Agreement shall have been duly filed with the FAA.
(i) Insurance.
Seller
shall have received evidence satisfactory to it that it has been named as an
additional insured under the liability policies maintained pursuant to the
Lease.
(j) No
Sales Tax.
The
Aircraft shall be located in a jurisdiction in which, in Seller’s judgment, no
sales, use or similar tax will be due upon or in respect of the sale, assignment
or transfer of the Equity Interest as contemplated hereby.
9
(k) FAA
Counsel Opinion.
Seller
shall have received an opinion from McAfee & Xxxx, special FAA counsel, in
the customary form, scope and substance satisfactory to the Seller as to title
to the Aircraft and related Engines and as to the appropriate filings with
the
FAA and the International Registry, if any.
Section
3.3 Purchaser’s
Conditions to Closing.
The
obligation of Purchaser to acquire the Equity Interest and to pay the
Acquisition Price on the Closing Date is subject to the satisfaction of (to
the
reasonable satisfaction of Purchaser), or the waiver by Purchaser of the
following conditions precedent:
(a) Representations
and Warranties.
The
representations and warranties of Seller contained herein, in all other Transfer
Documents to which it is a party and in all of the Transaction Documents shall
be true and correct as of the Closing Date with the same force and effect as
though made on and as of the Closing Date, except to the extent that any such
representation or warranty relates solely to an earlier date in which case
such
representation or warranty shall have been true and correct on and as of such
earlier date.
(b) Due
Authorization.
Purchaser shall have received (i) a copy of the articles of organization and
operating agreement of Seller, (ii) a good standing certificate for Seller
in
the State of Delaware, and (iii) such officer or incumbency certificates as
may
be necessary to establish the authority of the signatories to the Transfer
Documents.
(c) Consents
and Approvals.
All
approvals and consents required under the Transaction Documents in connection
with the transaction contemplated by this Agreement and the Assignment and
Assumption Agreement relating to the Equity Interest to be transferred on the
Closing Date shall have been duly obtained, given or accomplished.
(d) No
Default.
Seller
shall not be in default of any of its obligations hereunder or under any of
the
Transfer Documents to which it is a party. No Default or Event of Default as
defined in the Transaction Documents shall have occurred and be continuing
and
each of the Transaction Documents shall be in full force and
effect.
(e) No
Material Adverse Change.
On the
Closing Date, there shall have been no material adverse change in the condition
of the Aircraft.
(f) Assignment
and Assumption Agreement.
Purchaser shall have received this Agreement and the Assignment and Assumption
Agreement, in each case duly executed and delivered by Seller. The Assignment
and Assumption Agreement shall have been duly filed with the FAA.
(g) Insurance.
Purchaser shall have received (i) a certificate from Lessee’s independent
insurance broker evidencing the insurance required to be maintained pursuant
to
the Lease and listing Purchaser and Purchaser’s beneficiary as additional
insureds; and (ii) a report from Lessee’s insurance broker evidencing Lessee’s
compliance with the terms of the Lease and as to such other matters as Purchaser
may reasonably request.
(h) FAA
Counsel Opinion.
Purchaser shall have received an opinion from McAfee & Xxxx, special FAA
counsel, in the customary form, scope and substance satisfactory to
10
the
Purchaser as to title to the Aircraft and related Engines and as to the
appropriate filings with the FAA and the International Registry, if
any.
(i) Tax
Indemnity Agreement.
Seller
has assigned Purchaser, pursuant to an assignment in form and substance as
the
attached Exhibit B, all of Sellers right, title and interest in and to that
certain Tax Indemnity Agreement 645 arising from and after the Closing Date,
but
excluding in each case any and all rights and interests of Seller in respect
of
the following: (i) Seller’s right to tax and other indemnification under
the Tax Indemnity Agreement as a result of or arising out of events occurring
or
circumstances existing prior to the Closing Date (or claim asserted against
Seller with respect to a matter subsequent to the Closing Date, if Seller would
otherwise be entitled to indemnification for such claim under the Tax Indemnity
Agreement, (ii) any interest payable by Lessee on any amount referred to
above and (iii) the right to enforce payment of the amounts referred to in
clauses (i) and (ii) above.
(j) Litigation. No
action, proceeding or investigation shall have been instituted or threatened
by
any Person before any Governmental Authority, nor shall any order, writ,
judgment or decree have been issued or proposed to be issued by any Governmental
Authority as of the Closing Date, which in any case questions the validity
or
legality of this Agreement, the transactions contemplated hereby or by the
Transaction Documents or the ability of either party hereto to consummate any
of
such transactions.
ARTICLE IV
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section
4.1 Representations,
Warranties and Covenants of Seller.
Seller
hereby represents and warrants to Purchaser, as of the date hereof and as of
the
Closing Date as follows:
(a) Organization,
Corporate Authority, Etc.
Seller
is a limited liability company duly formed, validly existing and in good
standing under the laws of the State of Delaware. Seller has all requisite
power
and authority to enter into and perform its obligations under the Transfer
Documents.
(b) Authorization,
Etc.
This
Agreement and the Assignment and Assumption Agreement (when entered into by
Seller) have been (or will have been) duly authorized, executed and delivered
by
Seller and this Agreement and the Assignment and Assumption Agreement
constitutes (or will constitute) the legal, valid and binding obligations of
Seller, enforceable against Seller in accordance with its terms, except as
enforcement of the terms hereof and thereof may be limited by applicable
bankruptcy, insolvency, reorganization, liquidation, moratorium or similar
laws
affecting enforcement of creditors’ rights generally, and by general principles
of equity.
(c) No
Violation.
None of
the execution, delivery or performance by Seller of the Transfer Documents,
or
the consummation by Seller of the transaction contemplated hereby and thereby,
will contravene any Applicable Law binding on Seller or any of its property,
or
any provision of the certificate of formation or operating agreement of Seller,
or will result in a breach of, or constitute a default under, or contravene
any
provision of, any mortgage, deed of trust, indenture or other agreement or
instrument to which Seller is a party or by which Seller or
11
all
or
any of its property or assets is bound.
(d) Seller’s
Liens; Indebtedness.
Seller
is the sole legal and beneficial owner of the Equity Interest and the
Indebtedness is equal to the outstanding principal and accrued interest due
under the Trust Indenture as of the date of this Agreement. There are no Liens
on the Equity Interest, and on the Closing Date, Seller will transfer to
Purchaser good and marketable title to the Equity Interest, other than the
Reserved Rights, free and clear of any and all Liens other than Liens permitted
by the terms of the Transaction Documents.
(e) No
Consents or Approvals.
None of
the execution, delivery or performance by Seller of the Transfer Documents,
or
the consummation by Seller of the transaction contemplated hereby and thereby,
requires the consent or approval of, the giving of notice to, the registration,
recording or filing of any documents with, or the taking of any other action
in
respect of, any Governmental Authority, except such as have been obtained or
effected on or prior to the Closing Date.
(f) No
Litigation.
There
are no pending or, to the best of Seller’s knowledge, threatened investigations,
suits or proceedings against Seller or affecting Seller or its properties,
that,
if determined adversely, would adversely affect the consummation of the
transaction contemplated by, or the performance by Seller of its obligations
under, the Transfer Documents.
(g) No
Violation of Law.
Seller
is not in breach of any Applicable Law that would have an adverse effect on
Seller or on the transaction contemplated by, or on Seller’s ability to perform
its obligations under, the Transfer Documents.
(h) Disclaimer.
EXCEPT
AS PROVIDED IN ONE OR MORE OF THE TRANSFER DOCUMENTS, SELLER HAS NOT, AND SHALL
NOT BE DEEMED TO HAVE MADE, AND SELLER HEREBY EXPRESSLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, WITH RESPECT TO THE AIRCRAFT, THE TRUST ESTATE, THE EQUITY INTEREST
OR THE TRANSACTION DOCUMENTS, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, COMPLIANCE WITH DESCRIPTION, FITNESS FOR ANY
PARTICULAR PURPOSE, AIRWORTHINESS, QUALITY, WORKMANSHIP, VALUE, CONDITION,
DESIGN, MANUFACTURE, PERFORMANCE OR OPERATION, OR ANY WARRANTIES OR
REPRESENTATIONS ARISING OUT OF CUSTOMARY TRADE USAGE AND PRIOR COURSE OF
DEALING, WHETHER OR NOT ANY DEFECT IS APPARENT OR LATENT ON THE CLOSING
DATE.
(i) Damage
to Aircraft.
Seller
has no knowledge or notice that any loss or damage relating to the Aircraft,
or
an event that, with lapse of time or the making of a determination or both,
might cause any loss or damage, has occurred, except for immaterial losses
or
damage that does not interfere with the operational status of the
Aircraft.
(j) No
Prepayment.
Seller
has not received any prepayment of Rent under the Lease.
(k) No
Lessee Assignment.
Seller
has not consented to any assignment by the
12
Lessee
of
its rights under the Lease or to any sublease or transfer of possession of
the
Aircraft subject thereto, and to Seller’s knowledge, no such assignment,
sublease or transfer of possession has occurred.
(l) No
Lessee Termination.
Seller
has not received notice that Lessee has exercised its rights to an early
termination under Section 9 of the Lease.
Section
4.2 Representations,
Warranties and Covenants of Purchaser.
Purchaser hereby represents, warrants and covenants to Seller, as of the date
hereof and as of the Closing Date, as follows:
(a) Organization,
Authority, Etc.
Purchaser is a limited liability company duly formed, validly existing and
in
good standing under the laws of the State of Delaware. Purchaser has all
requisite power and authority to enter into and perform its obligations under
the Transfer Documents.
(b) Authorization,
Etc.
Purchaser has taken, or caused to be taken, all necessary action to authorize
the execution and delivery of the Transfer Documents, and the performance of
Purchaser’s obligations thereunder. This Agreement and each of the other
Transfer Documents (when entered into by Purchaser) has been (or will have
been), duly authorized, executed and delivered by Purchaser and constitute
(or
will constitute) the legal, valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with their respective terms, except
as enforcement of the terms hereof and thereof may be limited by applicable
bankruptcy, insolvency, reorganization, liquidation, moratorium or similar
laws
affecting enforcement of creditors’ rights generally, and by general principles
of equity.
(c) No
Violation.
None of
the execution, delivery or performance by Purchaser of this Agreement, or the
Assignment and Assumption Agreement nor the consummation by Purchaser of the
transactions contemplated hereby and thereby, will contravene any Applicable
Law
binding on Purchaser or any of its property or the terms of the articles of
organization operating agreement of Purchaser or the Investment Trust Agreement,
or will result in a breach of, or constitute a default under, or contravene
any
provision of, any mortgage, deed of trust, indenture or other agreement or
instrument to which Purchaser is a party or by which Purchaser or all or any
of
its property or assets are bound.
(d) No
Consents or Approvals.
None of
the execution, delivery or performance by Purchaser of this Agreement, or the
other Transfer Documents, or the consummation by Purchaser of the transactions
contemplated hereby and thereby, requires the consent or approval of, the giving
of notice to, the registration, recording or filing of any documents with,
or
the taking of any other action in respect of, any Governmental Authority, except
such as have been obtained or effected on or prior to the applicable Closing
Date.
(e) No
Litigation.
There
are no pending or, to the best of Purchaser’s knowledge, threatened
investigations, suits or proceedings against Purchaser or affecting Purchaser
or
its properties, that, if determined adversely, would adversely affect the
consummation of the transaction contemplated by, or the performance by Purchaser
of its obligations under, this Agreement, the other Transfer Documents or the
Transaction Documents.
13
(f) No
Violation of Law.
Purchaser is not in breach of any Applicable Law that would have an adverse
effect on Purchaser or on the transaction contemplated by, or on Purchaser’s
ability to perform its obligations under, this Agreement, the other Transfer
Documents or the Transaction Documents.
(g) Covenant
Regarding Insurance.
Purchaser hereby agrees to use its best efforts to cause Lessee to name Seller
as an additional insured under the liability insurance policies maintained
pursuant to the Lease for a period of one (1) year from and after the Closing
Date.
(h) Citizenship.
Purchaser is a Citizen of the United States.
(i) No
Liens.
No
Lessor Liens attributable to Purchaser will attach in respect of all or any
part
of the Trust Estate as a result of the transactions contemplated by the Transfer
Documents or the Transaction Documents.
(j) Investment
by Purchaser.
Purchaser’s beneficial interest in the Trust Estate is being acquired by it for
its own account, for investment and not with a view to any resale or
distribution thereof, provided, however, that, subject to the restrictions
on
transfer set forth in Section 10 of the Participation Agreement, the
disposition by Purchaser of its beneficial interest in the Trust Estate shall
at
all times be within its control.
(k) ERISA.
No part
of the funds to be used by Purchaser to acquire the Equity Interest directly
or
indirectly constitute assets of an “employee benefit plan” as defined in section
3.3(d) of the Employee Retirement Income Security Act of 1974, as amended,
or a
“plan” within the meaning of Section 4975(e)(1) of the Internal Revenue
Code of 1986, as amended.
(l) Securities
Laws.
Neither
Purchaser nor any Person authorized to act on its behalf has directly or
indirectly offered any beneficial interest in or security relating to the
ownership of the Aircraft or any interest in the Trust Estate, or any Equipment
Note or any other interest in or under the Trust Indenture for sale to, or
solicited any offer to acquire any of the same from, any Person in violation
of
applicable securities Laws.
(m) Sales
Tax Matters.
Purchaser agrees to cooperate with and assist Seller in taking such actions
as
may be necessary in order to eliminate or minimize the imposition of any sales,
use or other transfer taxes arising as a result of the transactions contemplated
herein.
ARTICLE
V
RESERVED
RIGHTS
Section
5.1 Reserved
Rights.
Purchaser will be entitled to all benefits and rights of Owner Participant
(subject to Seller’s retention of the Reserved Rights), pursuant to any and all
Transaction Documents in respect of the period from and after the Closing Date.
Seller hereby reserves, and nothing contained herein shall be construed as
a
sale, conveyance, assignment or transfer of Reserved Rights.
Section
5.2 Allocation
of Amounts.
If
Purchaser or Owner Trustee shall receive any amount relating to any Transaction
Document or any of the transactions contemplated thereby to
14
which
Seller is entitled under Section 5.1, Purchaser shall promptly remit or
shall cause the Owner Trustee to remit such amount to Seller (together with,
to
the extent not paid over within ten Business Days, interest at the then-
applicable average rate for federal funds from and including the date of receipt
by Purchaser or Owner Trustee, as the case may be, to but excluding, the date
of
payment to Seller) and, until so delivered, any such amount received shall
be
received and held in trust by Purchaser or Owner Trustee, as the case may be,
for the benefit of Seller. If Seller shall receive any amount relating to any
Transaction Document or any of the transactions contemplated thereby to which
Purchaser or Owner Trustee is entitled under Section 5.1, Seller shall
promptly remit such amount to Purchaser or Owner Trustee, as the case may be
(together with, to the extent not paid over within ten Business Days, interest
at the then-applicable average rate for federal funds from and including the
date of receipt by Seller to, but excluding, the date of payment to Purchaser
or
Owner Trustee, as the case may be), and until so delivered any such amount
received by Seller shall be received and held in trust by Seller for the benefit
of Purchaser or Owner Trustee, as the case may be.
Section
5.3 Indemnification.
(a)
Purchaser shall have no liability or obligation as a result of, and Seller
shall
indemnify and hold Purchaser harmless on an after-tax basis against, and shall
be liable for and shall pay any loss, cost or other expense arising out of
(i) any failure by Seller to comply with the terms of the Transaction
Documents to which it is a party prior to the Closing Date, (ii) any
liabilities or obligations of Seller under the Transaction Documents required
to
be satisfied or performed prior to the Closing Date or (iii) a breach by
Seller of any of its representations or warranties contained in any of the
Transfer Documents.
(b) Seller
shall have no liability or obligation as a result of, and Purchaser shall
indemnify and hold Seller harmless on an after-tax basis against, and shall
be
liable for and shall pay any loss, cost or other expense arising out of
(i) any failure by Purchaser to comply with the terms of the Transaction
Documents on or after the Closing Date, (ii) any liabilities or obligations
of Purchaser required to be satisfied or performed under the Transaction
Documents on or after the Closing Date or (iii) a breach by Purchaser of
any of its representations or warranties contained in any of the Transfer
Documents.
Section
5.4 Mutual
Cooperation.
Seller
and Purchaser shall provide each other with such assistance as may reasonably
be
requested by either of them in writing in connection with the preparation of
any
tax return, any audit or other examination by any taxing authority, or any
judicial or administrative proceedings relating to liability for Taxes, and
each
will retain and, upon the request of the other, provide the other with any
records or information which may be relevant to such return, audit or
examination or proceedings. Such assistance shall include making employees
available on a mutually convenient basis to provide additional information
and
explanation of any material provided hereunder. The party requesting assistance
hereunder shall reimburse the other for reasonable out-of-pocket expenses
incurred by the other in providing such assistance.
ARTICLE V
MISCELLANEOUS
Section
6.1 Transaction
Costs.
Regardless of whether the transactions contemplated hereby are consummated,
(A) Purchaser agrees to pay all costs, expenses and fees (collectively,
15
“Costs”)
incurred by it (including, without limitation, fees and disbursements of counsel
and/or special counsel to Purchaser) in connection with the transaction
contemplated hereby, and (B) Seller agrees to pay all Costs incurred by it
in connection with the transaction contemplated hereby (including, without
limitation, any and all fees and commissions of AirCapital Aviation Services,
LLC (“AirCapital”), fees and disbursements of counsel and/or special counsel to
Seller and any and all Costs incurred by each of Lessee and Owner Trustee in
connection with the transactions contemplated hereby). Each of Seller and
Purchaser agrees to pay one-half of the fees and expenses of special FAA counsel
for services rendered in connection with the transaction contemplated
hereby.
Section
6.2 Brokers,
Finders, Etc.
Seller
states and represents to Purchaser that it has dealt with AirCapital who was
acting as Seller’s broker or finder in connection with the transaction
contemplated hereby and that AirCapital is entitled to a brokerage fee,
financial advisory fee, commission or finder’s fee in connection with this
transaction. Purchaser
states and represents to Seller that it has dealt with no broker or finder
in
connection with the transaction contemplated hereby, no broker or Person acting
on such a party’s behalf is entitled to any brokerage fee, financial advisory
fee, commission or finder’s fee in connection with this transaction. Each of
Seller and Purchaser agrees to indemnify and hold harmless the other for, from
and against any and all loss, liability, damage, cost, claim or expense
(including, without limitation, attorneys’ fees) incurred by reason of any
commission, brokerage fee, financial advisory fee or finder’s fee alleged to be
payable because of any act, omission or statement of the indemnifying party.
Section
6.3 Announcements.
Purchaser and Seller shall consult with each other regarding press releases
or
other public announcements related to the Transfer Documents and the
transactions contemplated hereby.
One or
more of the owners of Seller will file SEC Form 8-Ks in connection with this
transaction.
Section
6.4 Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts shall together constitute but one and the same
instrument.
Section
6.5 Amendments,
Etc.; Entire Agreement.
Except
as otherwise specifically provided herein, this Agreement and the other Transfer
Documents contain the entire agreement of the parties with respect to the
subject matter hereof and thereof, and supersede all prior agreements and
understandings between the parties, whether written or oral. Neither this
Agreement nor any of the terms hereof may be terminated, amended, supplemented,
waived or modified orally, but only by an instrument which purports to
terminate, amend, supplement, waive or modify this Agreement, or any of the
terms hereof, signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification is sought. The
schedules and exhibits attached to this Agreement constitute a part of this
Agreement and are incorporated herein by reference as if set forth in full
in
the main body of this Agreement.
Section
6.6 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their successors and permitted assigns. Neither party may assign its rights
hereunder without the prior written consent of the other party prior to the
Closing Date (and any such attempted assignment without such consent shall
be
void).
16
Section
6.7 Governing
Law; Submission to Jurisdiction.
(a)
THIS AGREEMENT, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE IN SUCH STATE, WITHOUT
GIVING EFFECT TO PRINCIPLES RELATING TO CONFLICTS OF LAW.
(b) Each
of
Seller and Purchaser irrevocably agrees that any legal suit, action or
proceeding arising out of or relating solely to this Agreement or the Assignment
and Assumption Agreement (or any document referred to herein or therein) or
the
transactions contemplated hereby or thereby or the subject matter hereof or
thereof, shall be instituted in the state or federal courts in the borough
of
Manhattan, City of New York, State of New York, and it hereby irrevocably
waives, to the fullest extent permitted by law, any objection which it may
have
now or hereafter to the laying of the venue or the jurisdiction or the
convenience of the forum of any such legal suit, action or proceeding and
irrevocably submits generally and unconditionally to the jurisdiction of any
such court but only in any such suit, action or proceeding. Each of Seller
and
Purchaser further irrevocably agrees to the service of process of any of the
aforementioned courts but only in any suit, action or proceeding of the nature
referred to above by the mailing of the copies thereof by certified mail,
postage prepaid, return receipt requested, to it at its address specified in
section 6.9 hereof (as the same may be changed from time to time pursuant
to section 6.9 hereof), such service to be effective upon the date of
receipt indicated on the postal receipt returned from it.
(c) Subject
to any right of appeal, final judgment against Seller or Purchaser in any suit
shall be conclusive, and may be enforced in other jurisdictions by suit on
the
judgment, a certified or true copy of which shall be conclusive evidence of
the
fact and of the amount of any indebtedness or liability of Seller or Purchaser,
as the case may be, therein described.
Section
6.8 WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM
OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE ASSIGNMENT
AND ASSUMPTION AGREEMENT OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT,
OR
THE ASSIGNMENT AND ASSUMPTION AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED
TO
BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH
WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
HERETO FURTHER WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER WITH
ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS
17
WAIVER
IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS OR MODIFICATIONS TO
THIS
AGREEMENT OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION.
IN
THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT
TO A TRIAL BY THE COURT.
Section
6.9 Notices,
Etc.
All
notices, offers, acceptances, approvals, waivers, requests, demands and other
communications hereunder or under any instrument, certificate or other
instrument delivered in connection with the transactions described herein shall
be in writing, shall be addressed as provided below and shall be considered
as
properly given (a) if delivered in person, (b) if sent by reputable
overnight delivery service, (c) in the event overnight delivery services
are not readily available, if mailed by first class United States mail, postage
prepaid, registered or certified with return receipt requested, or (d) if
sent by telecopier and confirmed in writing by any other manner described above.
Notice so mailed shall be effective upon the earlier of actual receipt or the
expiration of five (5) days after its deposit. Notice given in any other
manner shall be effective upon receipt by the addressee; provided,
however,
that if
any notice is tendered to an addressee and the delivery thereof is refused
by
such addressee, such notice shall be effective upon such tender. For the
purposes of notice, the address of the parties shall be as set forth below;
provided
that
either party shall have the right to change its address for notice hereunder
to
any other location by the giving of prior notice to the other party in the
manner set forth hereinabove. The initial addresses of the parties hereto are
as
follows:
If
to
Purchaser:
Xxxxxxxxx
Air Trustee, LLC
00
Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx,
XX 00000-0000
Telephone: (000)
000-0000
Telecopier: (000)
000-0000
with
a
copy to:
Xxxxx
Xxxxxxx, Esq.
Xxxxxxxx,
Xxxx & Xxxxxxx
000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx,
XX 00000
Telephone: (000)
000-0000
Telecopier: (000)
000-0000
If
to
Seller:
PLM
XXX
XX LLC
c/o
PLM
Investment Management, Inc.
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Telephone: (000)
000-0000
18
Telecopier: (000)
000-0000
and
to:
c/o
Semele Group
000
Xxxxx
Xxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxx
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
with
a
copy to:
Xxxx
Xxxx, Esq.
Xxxx
& Xxxx, LLP
000
Xxxxxxx Xxxxxx
Xxxxx
0000
Xxx
Xxxx,
XX 00000
Telephone: (000)
000-0000 (x24)
Telecopier: (000)
000-0000
Section
6.10 Severability
of Provisions.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section
6.11 Headings,
Etc.
The
headings and the table of contents used herein are for convenience of reference
only and shall not define or limit any of the terms or provisions
hereof.
Section
6.12 Further
Assurances; Confidentiality.
(a)
Seller and Purchaser shall do and perform such further acts and execute and
deliver such further instruments as may be required by Applicable Law or
reasonably requested by either party to carry out and effectuate the purposes
of
this Agreement and the Assignment and Assumption Agreement.
(b) Purchaser
and Seller agree that any and all information of any kind obtained pursuant
to
this Agreement that shall not then be or have become generally available shall
be kept and maintained in strictest confidence, and shall not be disclosed
or
disseminated to any other Person, except (A) as otherwise required by any
Transaction Document, (B) to any regulatory agency, (C) in response to
any subpoena or other legal process, (D) to any prospective successor or
assign which has agreed with such party that, upon disclosure of such
information, such prospective successor or assign shall be bound by the
provisions of this Section 6.12(b), (E) as part of any filing to be
made with any Governmental Authority and (F) to attorneys, accountants and
financial, insurance and other independent advisors of any such
party.
Section
6.13 Survival.
The
representations, warranties, covenants and indemnities of the parties contained
in this Agreement shall survive execution and delivery hereof
19
Section
6.14 Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
*
*
*
20
IN
WITNESS WHEREOF,
the
parties hereto have caused this Purchase Agreement (N14645) to be duly executed
and delivered as of the date first above written.
|
PLM
CAL I LLC,
Seller
By:
_____________________________
Name:
___________________________
Its:
______________________________
|
|
|
XXXXXXXXX
AIR TRUSTEE, LLC,
Purchaser
By:
_____________________________
Name:
___________________________
Its:
______________________________
|
21
SCHEDULE
1
TRANSACTION
DOCUMENTS
|
1.
|
Trust
Agreement 645, dated as of September 30, 1997, between Ballston Aero
Trust
Services, L.C., as Owner Participant, and Xxxxx Fargo Bank Northwest,
N.A.
as successor to First Security Bank, N.A., as Owner
Trustee.
|
|
2.
|
Trust
Indenture and Mortgage 645, dated as of September 30, 1997, between
Xxxxx
Fargo Bank Northwest, N.A. as successor to First Security Bank, N.A.,
as
Owner Trustee and Wilmington Trust Company, as
Mortgagee.
|
|
3.
|
Lease
Agreement 645, dated as of September 30, 1997, between Xxxxx Fargo
Bank
Northwest, N.A. as successor to First Security Bank, N.A., as Lessor
and
Continental Airlines, Inc., as
Lessee.
|
|
4.
|
Lease
Supplement No. 1, dated September 30, 1997, between Xxxxx Fargo Bank
Northwest, N.A. as successor to First Security Bank, N.A., as Lessor
and
Continental Airlines, Inc., as
Lessee.
|
|
5.
|
Participation
Agreement 645, dated as of September 30, 1997, among Continental
Airlines,
Inc., as Lessee, Ballston Aero Trust Services, L.C., as Owner Participant,
Xxxxx Fargo Bank Northwest, N.A. as successor to First Security Bank,
N.A., as Owner Trustee and Wilmington Trust Company, as Mortgagee,
Subordination Agent and Pass Through
Trustee.
|
|
6.
|
Tax
Indemnity Agreement 645, dated as of September 30, 1997, between
CIT Group
Inc. as successor to AT&T Credit Corporation, and Continental
Airlines, Inc.
|
|
7.
|
Assignment
and Assumption Agreement (N14645), dated as of August 26, 2004, by
and
between Ballston Aero Trust Services, L.C. and PLM CAL I
LLC.
|
|
8.
|
Partial
Assignment and Assumption Agreement (N14645), dated as of November
15,
2004, between CIT Communications Finance Corporation, as successor
to
AT&T Credit Corporation and PLM CAL I
LLC.
|
22
SCHEDULE
2
FINANCIAL
INFORMATION
ACQUISITION
PRICE
$3,500,000
INDEBTEDNESS
(as
of November 22, 2006)
|
Principal
|
Interest
|
Total
|
|
$11,414,155.77
|
$120,644.77
Per
diem interest after 11/22/2006: $2,365.58
|
$11,534,800.54
|
