📄 Extracted Text (10,127 words)
VEDDER PRICE VEDDER PRICE LLP
Draft: 29 January 2015
PICTON II LTD.
as Seller
and
PLAN D, LLC
as Buyer
AIRCRAFT SALE AND PURCHASE AGREEMENT
One Boeing Business Jet B737-72U Aircraft
Manufacturer's Serial Number 292731 YG006
Current Registration VP-BBJ
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CONTENTS
Section Page
I. Definitions and Interpretation 1
2. Agreement to Sell and to Purchase and Conditions Precedent 5
3. Purchase Price and Payment 7
4. Pre-Purchase Inspection 7
5. Delivery 9
6. Condition of Aircraft and Disclaimer 11
7. Taxes and Payments 13
8. Further Provisions 14
Schedule 1 Specification
Schedule 2 Delivery Condition Requirements
Schedule 3 Insurance Requirements
Schedule 4 Certificate of Technical Acceptance
Schedule 5 Certificate of Acceptance of Delivery
Schedule 6 Warranty Bill of Sale
Aircraft Sale and Purchase Agreement BIM MSN 292731YO006 CONTENTS
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THIS AGREEMENT (the "Agreement") is made as of 2015
BETWEEN:
PICTON II LTD., a company incorporated and existing under the laws of Bermuda, whose
registered office is at Clarendon House, Church Street, Hamilton HM QX, Bermuda (the
"Seller"); and
(2) PLAN D, LLC, a company incorporated and existing under the laws of [ ], whose registered
office is at [ ] (the "Buyer").
WHEREAS:
The Seller wishes to sell and the Buyer wishes to purchase the Aircraft upon and subject to the terms
of this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement the following terms have the following meanings except where the context
otherwise requires or it is otherwise provided:
"Aircraft" means (a) one Boeing Business Jet B737-72U aircraft manufacturer's serial
number 29273 line number YG006 current registration and nationality mark VP-BBJ and its
two CFM International CFM56-7B26/B I engines serial numbers 874437 (LH) and 874438
(RH), (b) the auxiliary power unit, landing gear, avionics, systems, appliances, accessories,
components, parts, furnishings and other equipment (including all loose, ground and safety
equipment other than personalised items) belonging to, installed in or attached or relating
thereto and (c) all Records relating thereto, as such Aircraft is further described in the
Specification;
"Aviation Authority" means all and any of the Governmental Entities which under the laws
of the relevant jurisdiction shall from time to time have (a) control or supervision of civil
aviation in that jurisdiction and/or (b) jurisdiction over the registration, airworthiness, safety
or operation of, or other matters relating to, the Aircraft in that jurisdiction;
"BDCA" means the Department of Civil Aviation of Bermuda;
"Bill of Sale" means a Warranty Bill of Sale in respect of the Aircraft substantially in the
form of Schedule 6;
"Business Day" means a day, other than a Saturday or Sunday, on which banks are open for
the transaction of business of the nature required by this Agreement in New York, United
States of America;
"Buyer Indemnitees" has the meaning given to it in section 6.2;
"Casualty Occurrence" means, in relation to the Aircraft or any engine, an event which
gives rise to the payment by insurers under the hull insurances maintained by the Seller in
respect of the Aircraft or that engine on the basis of a total loss of the Aircraft or that engine
by whatever name called;
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"Certificate of Acceptance of Delivery" means a certificate of acceptance of delivery in
respect of the Aircraft substantially in the form of Schedule 5;
"Certificate of Technical Acceptance" means a certificate of technical acceptance in respect
of the Aircraft substantially in the form of Schedule 4;
"Delivery" means the passing of title to the Aircraft from the Seller to the Buyer pursuant to
and in accordance with this Agreement;
"Delivery Date" means the date on which Delivery occurs;
"Delivery Location" means Zurich, Switzerland or such other location as may be agreed
between the Seller and the Buyer;
"Delivery Condition Requirements" means the requirements set forth in Schedule 2;
"Deposit" means a deposit in an amount equal to two million dollars (USD2,000,000.00) to
be paid by the Buyer to the Escrow Agent's Account within two (2) Business Days from the
date of this Agreement in accordance with section 3.1(a) and which is non-refundable to the
Buyer save as expressly provided in this Agreement;
"Deregistratlon Telex" means a telex or facsimile communication between Aviation
Authority of the State of Registry to the Aviation Authority of the Intended State of Registry
by which the former advises the latter of the deregistration of the Aircraft from the Aircraft
Register maintained by the Aviation Authority of the State of Registry;
"Discrepancy" has the meaning given to it in section 4.1(d);
"Escrow Agent" means Insured Aircraft Title Service, Inc. of 4848 Southwest 36th Street,
Oklahoma City, OK 73179, United States of America;
"Escrow Agent's Account" means:
Bank: International Bank of Commerce
Branch: 1200 San Bernardo, Laredo, TX 78040, United States of America
Swift: IBCLUS44
ABA: 114902528
Account: Insured Aircraft Title Service, Inc.
Account No.: 0717213717
Phone advice: Kirk Woford
Reference: BBJ/29273/YG006
"Escrow Agent's Fee" means an amount equal to ten thousand dollars (USD10,000.00)
payable to the Escrow Agent in accordance with the terms of this Agreement;
"Export Certificate of Ainvorthiness" means a standard, current export certificate of
airworthiness for the Aircraft issued by Aviation Authority of the State of Registry valid for a
period of at least thirty (30) days from Delivery with such exceptions or limitations as may be
required by Aviation Authority of the State of Registry or the Aviation Authority of the
Intended State of Registry;
"FAA" means the Federal Aviation Administration of the United States of America;
"Governmental Entity" means (a) any national government (de jure or defacto) of any state
or territory or political subdivision of either thereof, (b) any governmental authority, board,
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commission, department, division, organ, instrument, court, tribunal or agency of any state,
territory or political subdivision, however constituted and (c) any association, organisation or
institution of which any of the parties to this Agreement is a member or to whose jurisdiction
any of them is subject or in whose activities any of them is a participant;
"Indemnitees" means the Seller Indemnitees and the Buyer Indemnitees;
"Insolvency Event" means, with respect to any person, (a) that person admits that it is unable
or is unable to pay its debts as they fall due or is deemed for the purposes of any law to be or
is declared or adjudged to be insolvent, (b) that person makes any arrangement with or
compromise with any creditor, (c) that person petitions or applies to any court for the
appointment of, or has or suffers to be appointed, any receiver, administrative receiver,
administrator, liquidator, trustee or like or similar officer of it, its undertaking or a substantial
part of its assets, (d) that person convenes a meeting to consider or makes a resolution for or
commences a voluntary case or other proceeding seeking liquidation, reorganisation or other
relief under any bankruptcy, compromise, arrangement, readjustment of debt, suspension of
payments, insolvency, administration, liquidation or similar law, (e) that Person is subject to a
petition for or an involuntary case or other proceeding is commenced against that Person
seeking liquidation, reorganization or other relief under any such law and is not discharged
within thirty (30) days or (f) a distress or other execution is levied or sued out upon or against
any material part of the property or assets of that person and is not discharged within thirty
(30) days;
"Inspection Facility" means a Boeing approved maintenance facility in Western Europe to
be agreed between the Seller and the Buyer;
"Insurances" has the meaning given to it in section 6.3;
"Insurance Requirements" means the requirements set forth in Schedule 3;
"Intended State of Registry" means the United States of America (FAA);
"Major Check" means any completed full "C" check or higher check required pursuant to
the Manufacturer's recommended inspection and maintenance programmes;
"Manufacturer" means (a) in relation to the airframe, The Boeing Company and (b) in
relation to the engines, CFM International;
"Material Corrosion" means any corrosion to the Aircraft which (a) exceeds the acceptable
limits, tolerances and/or ranges of condition stated in the Manufacturer's maintenance and/or
technical or operations manual and (b) cannot be repaired, rectified or terminated on a non-
recurring basis such that the Aircraft can be returned to service without a requirement of
repetitive or recurring inspections which deviate from the Manufacturer's normal
maintenance procedures or require modifications to the normal life limitations, overhaul
and/or inspection intervals for the Aircraft;
"Material Damage" means any damage to the Aircraft which (a) in accordance with the
Manufacturer's maintenance manual required or would require a repair and a release to
service for that repair were the Aircraft to have a certificate of airworthiness at the time that
the repair is made or (b) exceeds or exceeded the acceptable limits, tolerances and/or ranges
of condition stated in the Manufacturers' maintenance and/or technical or operations manual
and required or would require a "remove and replace" repair to the affected area or part of the
Aircraft;
"Pre-Purchase Inspection" has the meaning given to it in section 4.1(a);
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"Purchase Price" means an amount equal to twenty three million dollars
(USD23,000,000.00);
"Records" means all manuals, logbooks, drawings, plans, data, tags and technical records
relating to the Aircraft including with respect to service bulletin status and airworthiness
directive status and modifications and repairs and including task cards, traceability records
and status of life limited parts;
"Scheduled Delivery Date" means the date which is five (5) Business Days after receipt by
the Seller of the signed Certificate of Technical Acceptance issued by the Buyer in
accordance with section 4.1(e) or the date which is five (5) Business Days after release of the
Aircraft to service by the Inspection Facility after rectification of any Discrepancies in
accordance with section 4.1(f), whichever is the later, or such other date as may be agreed
between the Seller and the Buyer;
"Security Interest" means any encumbrance, right or interest of any person, whether by way
of ownership, possession, enjoyment, security, contract, at law or otherwise, whatsoever,
however and whenever created or arising, including any mortgage, charge, pledge,
hypothecation, assignment, statutory right in rem, title retention, lease, lien, attachment, levy,
claim, right of detention or seizure or right of set-off, not created or caused to be created by or
through the Buyer;
"Seller Indemnitees" has the meaning given to it in section 6.2;
"Specification" means the specification of the Aircraft set forth in Schedule 1;
"State of Registry" means Bermuda;
"Termination Notice" has the meaning given to it in section 4.1(e); and
"USD" and "dollars" means the lawful currency of the United States of America from time to
time.
1.2 Interpretation
In this Agreement:
(a) section headings are for ease of reference only;
(b) words importing the singular number shall include the plural and words importing
the plural number shall include the singular;
(c) "including" means including without limitation to the generality of any description
preceding such term and the rule of ejusdem generis shall not be applicable to limit a
general statement followed by or referable to an enumeration of specific matters to
matters similar to those specifically mentioned;
(d) "person" includes any individual, company, corporation, partnership, firm, joint
venture, trust, unincorporated organization, association or Government Entity, in each
case, whether having distinct legal personality or not and references to any person
shall include any successor in title to such person or any permitted assignee of such
person and any company with which such person may merge or amalgamate or into
which it shall become consolidated or incorporated, whether by operation of law or
legal process, filing, petition, application or otherwise;
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(e) "tax" includes any and all forms of taxation, levy, impost, duty, contribution,
withholding, or charge of whatever nature and by whatever name called, whenever
created or imposed, by whoever imposed, and any amount deemed to be or treated as
an amount of any of the same and any amounts in lieu thereof or in the alternative
thereto, together with any additions to tax, penalties, fines, charges or interest thereon
and "taxes" and "taxation" shall be construed accordingly; and
(f) "terminate this Agreement" and similar phrases means to terminate the obligation
of the Seller to sell the Aircraft to the Buyer and the obligation of the Buyer to
purchase the Aircraft from the Seller without prejudice to any other rights or
obligations of the parties under this Agreement.
2. AGREEMENT TO SELL AND TO PURCHASE AND CONDITIONS PRECEDENT
2.1 Agreement to sell and to purchase
Subject to the terms of this Agreement, the Seller agrees to sell to the Buyer and the Buyer
agrees to purchase from the Seller all the Seller's legal, equitable and beneficial right, title
and interest in and to the Aircraft.
2.2 Seller's conditions precedent
The obligation of the Seller to sell the Aircraft to the Buyer shall be subject to fulfillment of
the following conditions precedent:
(a) on or before the date of this Agreement, the Seller shall have received evidence
satisfactory to the Seller that the Buyer has duly authorised the execution and delivery
of this Agreement and all matters contemplated by the Agreement;
within two (2) Business Days from the date of this Agreement, the Escrow Agent
shall have received the Deposit in accordance with section 3.1(a);
(c) the Seller shall have received the signed Certificate of Technical Acceptance (with or
without Discrepancies noted thereon) issued by the Buyer in accordance with section
4.1(e);
(d) on or before the Scheduled Delivery Date, the Seller shall have received evidence
satisfactory to the Seller of the Insurances;
(e) on or before the Scheduled Delivery Date, the Escrow Agent shall have received the
balance of the Purchase Price (being the Purchase Price less the Deposit already
received) together with an amount equal to fifty percent. (50%) of the Escrow
Agent's Fee; and
(f) on or before the Scheduled Delivery Date, the Escrow Agent shall have received the
signed Certificate of Acceptance of Delivery.
2.3 Waiver by Seller
The conditions precedent set forth in section 2.2 have been inserted for the benefit of the
Seller and may be waived or deferred by the Seller in writing, in whole or in part and with or
without conditions.
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2.4 Buyer's conditions precedent
The obligation of the Buyer to purchase the Aircraft from the Seller shall be subject to the
fulfillment of the following conditions precedent:
(a) on or before the date of this Agreement, the Buyer shall have received evidence
satisfactory to the Buyer that the Seller has duly authorised the execution and delivery
of this Agreement and all matters contemplated by the Agreement;
(b) the Aircraft shall have been made available at the Inspection Facility for the Pre-
Purchase Inspection in accordance with section 4.1(b);
(c) unless otherwise agreed between the Seller and the Buyer, the Seller shall have
rectified any Discrepancies in accordance with section 4.1(f);
(d) on or before the Scheduled Delivery Date, the Seller shall have positioned the
Aircraft at the Delivery Location; and
(e) on or before the Scheduled Delivery Date, the Escrow Agent shall have received the
executed Bill of Sale.
2.5 Waiver by Buyer
The conditions precedent set forth in section 2.4 have been inserted for the benefit of the
Buyer and may be waived or deferred by the Buyer in writing, in whole or in part and with or
without conditions.
2.6 Non-fulfilment by Buyer
If:
(a) any of the conditions precedent referred to in section 2.2 remain outstanding at
midnight on the due date and are not waived or deferred by the Seller in writing;
(b) the Buyer is otherwise in default of its obligations hereunder and any applicable grace
period allowed to the Buyer to comply with such obligations has expired; or
(c) an Insolvency Event shall have occurred in relation to the Buyer,
then, unless this Agreement has already been terminated in accordance with its terms, the
Seller may terminate this Agreement by written notice to the Buyer and the Escrow Agent.
Following any such termination, the Seller shall be entitled to retain the Deposit for its own
account and the Escrow Agent shall pay the Deposit to the Seller and return the balance of the
Purchase Price, if already received, to the Buyer, whereupon all further obligations and
liabilities of the Seller and the Buyer pursuant to this Agreement shall cease.
2.7 Non-fulfilment by Seller
If:
(a) any of the conditions precedent referred to in section 2.4 remain outstanding at
midnight on the due date and are not waived or deferred by the Buyer in writing;
(b) the Seller is otherwise in default of its obligations hereunder and any applicable grace
period allowed to the Seller to comply with such obligations has expired; or
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(c) an Insolvency Event shall have occurred in relation to the Seller,
then, unless this Agreement has already been terminated in accordance with its terms, the
Buyer may terminate this Agreement by written notice to the Seller and the Escrow Agent.
Following any such termination, the Deposit shall become refundable and the Escrow Agent
shall return the Deposit and the balance of the Purchase Price, if already received, to the
Buyer, whereupon all further obligations and liabilities of the Seller and the Buyer pursuant to
this Agreement shall cease; provided, however, that if the Buyer terminates this Agreement
pursuant to this section 2.7 for any of the reasons mentioned in sub-paragraphs (a), (b) or (c)
of this section 2.7, then in addition to the refund of the Deposit and the balance of the
Purchase Price, if already received, the Seller shall promptly reimburse the Buyer for all of
the Buyer's reasonably incurred and properly documented costs and expenses in conducting
the Pre-Purchase Inspection (including the check flight), and the travel and lodging expenses
and the fees of the Buyer's pilots, consultants and other professionals incurred or billed in
connection with any of this Agreement and the performance of the terms hereof, but provided
further that the Seller shall not be required to reimburse any such costs, expenses or fees in
excess of USD75,000.00 in aggregate.
3. PURCHASE PRICE AND PAYMENT
3.1 Purchase Price
The Purchase Price shall be payable as follows:
(a) the Deposit shall be paid by the Buyer to the Escrow Agent's Account within two (2)
Business Days from the date of this Agreement; and
(b) the balance of the Purchase Price (being the Purchase Price less the Deposit already
paid) shall be paid by the Buyer to the Escrow Agent's Account on or before the
Scheduled Delivery Date.
3.2 Escrow Agent
The Escrow Agent shall hold the Purchase Price in escrow, to be paid to the Seller on
Delivery in accordance with section 5 or otherwise as provided in this Agreement.
3.3 Escrow Agent's Fee
The Buyer and the Seller shall each bear fifty percent. (50%) of the Escrow Agent's Fee,
payable as follows:
(a) an amount equal to fifty percent. (50%) of the Escrow Agent's Fee shall be paid by
the Buyer to the Escrow Agent's Account on or before the Scheduled Delivery Date
and the Escrow Agent shall be entitled to retain such amount upon Delivery; and
(b) the Seller's account with the Escrow Agent shall be reduced by an amount equal to
fifty percent (50%) of the Escrow Agent's Fee and the Escrow Agent shall be entitled
to retain such amount upon Delivery.
4. PRE-PURCHASE INSPECTION
4.1 Pre-Purchase Inspection
(a) The Buyer shall be entitled to conduct a pre-purchase inspection of the Aircraft in
accordance with this section 4 (the "Pre-Purchase Inspection", which term shall
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include the check flight under section 4.2) for the purpose of demonstrating that the
Aircraft is or will on the Scheduled Delivery Date be in accordance with the Delivery
Condition Requirements.
(b) The Seller shall, at the Seller's cost, arrange for the necessary availability of the
Aircraft for the Pre-Purchase Inspection and deliver the Aircraft to the Inspection
Facility and the Buyer shall commence the Pre-Purchase Inspection no later than
fourteen (14) days from the date of this Agreement or such later date as may be
agreed between the Seller and the Buyer.
(c) The Pre-Purchase Inspection shall be undertaken on behalf of the Buyer, at the
Buyer's cost, by the Inspection Facility. The duration of the Pre-Purchase Inspection
shall be limited to fourteen (14) days from and including the date on which it
commences. The scope of the Pre-Purchase Inspection shall conform to the standard
Boeing approved pre-purchase inspection procedures for pre-owned aircraft of the
same type as the Aircraft, shall include, if required by the Buyer, engine ground
power runs, engine and auxiliary power unit boroscope inspections and shall be
approved by the Buyer's and the Seller's technical representatives acting reasonably
and in good faith. The Buyer's representatives shall be entitled to participate in and
assist with the Pre-Purchase Inspection, subject to the presence of and overall
supervision by the Seller's technical representatives. Buyer shall, at its cost, arrange
for the DAR to attend and participate in the Pre-Purchase Inspection to the extent the
DAR requires in order to determine whether the Aircraft is in a condition that meets
the relevant Delivery Condition Requirements.
(d) Any difference, discrepancy or defect in the Aircraft from the Delivery Condition
Requirements is referred to in this Agreement as a "Discrepancy". In the event of a
dispute between Seller and Buyer as to whether a Discrepancy is present in the
Aircraft, such dispute shall be resolved at the determination of the senior quality
controller of the Inspection Facility acting as an expert and not an arbitrator and
whose fees shall be borne by the party whose opinion as to the presence of the
Discrepancy is not substantially upheld by such expert or as such expert shall
otherwise determine.
(e) No later than forty eight (48) hours after completion of the Pre-Purchase Inspection,
the Buyer shall issue to the Seller a Certificate of Technical Acceptance (with or
without Discrepancies noted thereon) or, if any Discrepancy is identified which either
(1) the Seller cannot or is not willing to rectify within the period required in
accordance with section 4.1(0 or (2) the cost to the Seller of such rectification is
more than five hundred thousand dollars (USD500,000.00) and, in either case, Buyer
is not willing to proceed with the purchase of the Aircraft, a termination notice (a
"Termination Notice"). For the avoidance of doubt, the Buyer may only issue a
Termination Notice if any Discrepancy is identified which (1) the Seller cannot or is
not willing to rectify within the period required in accordance with section 4.1(f) or
(2) the cost to the Seller of such rectification is more than five hundred thousand
dollars (USD500,000.00).
(f) If the Buyer has issued the Certificate of Technical Acceptance with Discrepancies
noted thereon in accordance with section 4.1(e) then, unless otherwise agreed
between the Seller and the Buyer, the Seller shall, at Seller's cost, and provided that
the Seller is willing to rectify such Discrepancies, arrange for a Boeing approved
maintenance facility to remedy such Discrepancies as soon as reasonably practicable
but in any event within sixty (60) days after receipt by the Seller of the signed
Certificate of Technical Acceptance or such later date as may be agreed between the
Seller and the Buyer.
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(g) If the Buyer has issued a Termination Notice in accordance with section 4.1(e) or if
Buyer has issued the Certificate of Technical Acceptance in accordance with section
4.1(e) but the Seller is not willing or fails to rectify any Discrepancies within the
period required in accordance with section 4.1(f), the Deposit shall become
refundable and the Seller shall instruct the Escrow Agent to return the Deposit and
the balance of the Purchase Price, if already received, to the Buyer, whereupon all
further obligations of the Seller and the Buyer pursuant to this Agreement shall cease;
provided, however, that if the Buyer has issued the Certificate of Technical
Acceptance in accordance with section 4.1(e) and the cost to Seller to rectify the
Discrepancies is not more than one million dollars (USD1,000,000.00) but the Seller
is not willing or fails to rectify such Discrepancies within such period, then in
addition to the refund of the Deposit and the balance of the Purchase Price, if already
received, the Seller shall promptly reimburse the Buyer for all of the Buyer's
reasonably incurred and properly documented costs and expenses in conducting the
Pre-Purchase Inspection (including the check flight), and the travel and lodging
expenses and the fees of the Buyer's pilots, consultants and other professionals
incurred or billed in connection with any of this Agreement and the performance of
the terms hereof, but provided further that the Seller shall not be required to
reimburse any such costs, expenses or fees in excess of USD75,000.00 in aggregate.
4.2 Pre-Purchase Inspection Check Flight
During the Pre-Purchase Inspection, the Buyer shall be entitled, at its cost, to conduct a check
flight to be flown by the Seller's pilots with up to three (3) representatives of the Buyer
accompanying the flight. All procedures to be adopted during such check flight shall be
agreed between the Seller and the Buyer prior to the undertaking of such check flight, acting
reasonably and in good faith. Any Discrepancies found during such check flight shall be
rectified in accordance with the procedures set out above or rectification of Discrepancies.
5. DELIVERY
5.1 Delivery
(a) On or before the Scheduled Delivery Date:
(i) the Buyer shall make application for the registration of the Aircraft in the
Intended State of Registry with effect from Delivery;
(ii) the Buyer shall pay the balance of the Purchase Price (being the Purchase
Price less the Deposit) together with an amount equal to fifty percent (50%)
of the Escrow Agent's Fee to the Escrow Agent's Account;
(iii) the Buyer shall deposit the signed Certificate of Acceptance of Delivery with
the Escrow Agent;
(iv) the Seller shall, at the Buyer's cost, deliver the Aircraft to the Delivery
Location;
(v) the Seller shall deposit the executed Bill of Sale with the Escrow Agent; and
(vi) the Seller shall, at the Seller's cost, make application for the Certificate of
Airworthiness for Export, provided that the Buyer shall be responsible for all
costs and expenses incurred or to be incurred by the Seller in making any
modifications, alterations, additions or additional inspections as may be
required by the Aviation Authorities of the State of Registry or the Intended
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State of Registry for the purposes of obtaining the Export Certificate of
Airworthiness (to the extent such modifications, alterations, additions or
additional inspections are not part of the Delivery Condition) and, if any such
modifications, alterations, additions or inspections are required, the Buyer
shall, prior to the opening of a work order by the Seller for such
modifications, alterations, additions or inspections, pay to or provide security
to the reasonable satisfaction of the Seller for the cost of the same and for the
cost of returning the Aircraft to the condition required by the Aviation
Authority of the State of Registry for the re-issue of a standard certificate of
airworthiness for the Aircraft if the sale of the Aircraft hereunder does not
take place. The Seller and the Buyer shall consult with one another for the
purposes of obtaining the Export Certificate of Airworthiness and in respect
of all such modifications, alterations, additions or inspections to the Aircraft.
The Buyer may waive the obligations of the Seller under this Agreement to
obtain the Export Certificate of Airworthiness for the Aircraft in which case
the obligations of the Seller in respect of the obtaining of the Export
Certificate of Airworthiness shall cease and the Aircraft shall not fail to meet
the Delivery Condition Requirements by reason of any modifications or
alterations to obtain an Export Certificate of Airworthiness for the Aircraft
not having been made or an Export Certificate of Airworthiness not having
been obtained.
(b) On the Scheduled Delivery Date, subject always to sections 5.2 and 5.3, the Seller
shall tender the Aircraft for delivery at the Delivery Location in substantially the
same condition as at the completion of the Pre-Purchase Inspection (ordinary wear
and tear excepted, and taking into account any additional hours, cycles and/or time
incurred in connection with the performance of this Agreement) and:
(i) the Buyer shall:
(A) instruct the Escrow Agent to release the Purchase Price to the Seller
and pay such amount to the Seller; and
(B) accept delivery of the Aircraft to its possession and control "AS IS,
WHERE IS" under and in accordance with this Agreement by
instructing the Escrow Agent to date and release the Certificate of
Acceptance of Delivery to the Seller or its order,
(ii) whereupon the Seller shall:
(A) effect the transfer of title to the Aircraft to the Buyer by instructing
the Escrow Agent to date and release the Bill of Sale to the Buyer or
its order;
(B) procure the filing of an application for the deregistration of the
Aircraft at the relevant Aviation Authorities of the State of Registry
and request such Authorities to deregister the Aircraft from the
Aircraft Register and transmit the Deregistration Telex to the
Aviation Authority of the Intended State of Registry;
(C) subject to the proviso to section 5.1(a)(vi), release the Export
Certificate of Airworthiness to the Buyer or its order; and
(D) give up, or procure the giving up of, physical possession and control
of the Aircraft to the Buyer or its order; and
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(iii) the Escrow Agent shall give effect to such instructions received by it from the
Buyer and the Seller.
(c) Risk of loss in the Aircraft shall pass from the Seller to the Buyer on Delivery.
(d) With effect from Delivery, the Seller hereby transfers and assigns to the Buyer
absolutely and with full title guarantee all of the Seller's right, title and interest in and
to all assignable and warranties of manufacturers and suppliers, in each case, relating
to the Aircraft and that remain at Delivery.
5.2 Force NI aj cure
The Seller shall not be liable for any failure of, or delay in delivery of the Aircraft for the
period that such failure of delay is due to "acts of God" or the public enemy, civil war,
insurrection or riots, fires, explosions or serious accidents, governmental actions or failures to
act, governmental allocations or orders affecting material, equipment or facilities, strikes or
labour disputes, inability to obtain materials accessories, equipment or parts from the vendors
on terms anticipated or any cause beyond the Seller's control. The Seller shall promptly
notify the Buyer of the occurrence of any such cause and carry out its obligations under this
Agreement as promptly as practicable after such cause is terminated.
5.3 Material Damage or Casualty Occurrence prior to Delivery
If, prior to Delivery:
(a) the Aircraft suffers Material Damage, the Buyer or the Seller shall promptly notify
the other and the Escrow Agent upon becoming aware of the same and either party
may by notice to the other and the Escrow Agent terminate this Agreement.
Following any such termination, the Deposit shall become refundable and the Escrow
Agent shall return the Deposit and the balance of the Purchase Price, if already
received, to the Buyer, whereupon all further obligations and liabilities of the Seller
and the Buyer pursuant to this Agreement shall cease; or
(b) the Aircraft suffers a Casualty Occurrence, the Buyer or the Seller shall promptly
notify the other and the Escrow Agent upon becoming aware of the same and this
Agreement shall terminate without the requirement of further act by either party.
Following any such termination, the Deposit shall become refundable and the Escrow
Agent shall return the Deposit and the balance of the Purchase Price, if already
received, to the Buyer, whereupon all further obligations and liabilities of the Seller
and the Buyer pursuant to this Agreement shall cease.
6. CONDITION OF AIRCRAFT AND DISCLAIMER
6.1 GENERAL EXCLUSIONS
THE BUYER HEREBY UNCONDITIONALLY ACKNOWLEDGES THAT THE SELLER
IS NOT A MANUFACTURER OF AIRCRAFT, INCLUDING THE AIRCRAFT, AND
THAT THE BUYER SHALL BE SOLELY RESPONSIBLE FOR ANY DECISION AS TO
WHETHER OR NOT TO ENTER INTO THIS AGREEMENT OR ANY OTHER
TRANSACTION OR ARRANGEMENT IN RELATION TO THE AIRCRAFT. THE
SELLER HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY
REPRESENTATION, WARRANTY OR GUARANTEE (OTHER THAN AS TO TITLE
AND/OR AS MAY BE SPECIFICALLY PROVIDED IN THIS AGREEMENT) AS TO
THE DESCRIPTION, AIRWORTHINESS, DESIGN, MANUFACTURE, FITNESS,
CONDITION, OPERATION, QUALITY, DURABILITY, FITNESS OR SUITABILITY
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EFTA01119360
FOR ANY PARTICULAR PURPOSE OR USE INTENDED BY THE BUYER OR ANY
OTHER PERSON, AS TO THE ABSENCE OF LATENT, INHERENT OR OTHER
DEFECTS (WHETHER OR NOT DISCOVERABLE) IN THE AIRCRAFT, AS TO THE
COMPLETENESS OR CONDITION OF THE AIRCRAFT OR ITS RECORDS,
INCLUDING THE RECORDS, OR AS TO THE ABSENCE OF ANY INFRINGEMENT
OF ANY PATENT, COPYRIGHT OR DESIGN OR OTHER PROPRIETARY RIGHTS OR
IN RESPECT OF ANY CONSEQUENCES TO THE BUYER OR ANY OTHER PERSON,
ITS OR THEIR ASSOCIATES OR NOMINEES THAT MIGHT ARISE OUT OF THE
SALE AND/OR PURCHASE OR FAILURE TO MAKE ANY SALE OR PURCHASE OF
THE AIRCRAFT UNDER THIS AGREEMENT OR OTHERWISE, OR AS TO ANY
OTHER MATTER OR THING WHATSOEVER AND (SAVE AS TO TITLE AND AS
AFORESAID) ANY WARRANTIES, REPRESENTATIONS, CONDITIONS OR
GUARANTEES IMPLIED WHETHER ARISING IN CONTRACT, TORT OR THE
OPERATION OF LAW, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE OR
ARISING OUT OF CUSTOMARY TRADE USAGE OR PRIOR COURSE OF DEALING
OR WITH RESPECT TO THE FOREGOING IN RESPECT OF THE AIRCRAFT OR ANY
PART THEREOF OR OTHERWISE ARE, TO THE FULLEST EXTENT PERMITTED BY
LAW, EXCLUDED FROM THIS AGREEMENT AND THE SALE AND/OR PURCHASE
OF THE AIRCRAFT TO AND BY THE BUYER, ITS ASSOCIATES OR NOMINEES.
SUBJECT TO THE EXPRESS PROVISIONS OF THIS AGREEMENT THE AIRCRAFT IS
SOLD AND PURCHASED HEREUNDER "AS IS, WHERE IS".
UNDER NO CIRCUMSTANCES SHALL THE SELLER BE LIABLE TO THE BUYER OR
ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR
INCIDENTAL LOSS SUFFERED BY IT OR THEM IN RELATION TO MATTERS,
CIRCUMSTANCES OR EVENTS ARISING OUT OF, IN CONNECTION WITH OR IN
RELATION TO THE SALE AND/OR PURCHASE OR FAILURE TO MAKE ANY SALE
OR PURCHASE OF THE AIRCRAFT UNDER THIS AGREEMENT OR OTHERWISE
INCLUDING ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL AND/OR
PUNITIVE DAMAGES OR DAMAGES FOR LOSS OF PROFITS OR ANY OTHER
LOSSES OR DAMAGES FOR OR ARISING OUT OF ANY LACK OR LOSS OF USE OF
THE AIRCRAFT OR ANY PART THEREOF FOR ANY REASON.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITED WARRANTIES
AND THE LIMITATION OF LIABILITY OF THE SELLER CONTAINED IN THIS
AGREEMENT HAVE BEEN EXPRESSLY AGREED TO IN CONSIDERATION OF THE
PURCHASE PRICE AND THE OTHER PROVISIONS OF THIS AGREEMENT. THE
WARRANTIES, REPRESENTATIONS, OBLIGATIONS AND LIABILITIES OF THE
SELLER AND THE RIGHTS AND REMEDIES OF THE BUYER SET OUT IN THIS
AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
OBLIGATIONS, REPRESENTATIONS AND LIABILITIES OF THE SELLER
ACCORDINGLY.
THE ABOVE LIMITATIONS DO NOT AFFECT IN ANY WAY THE SELLER'S
OBLIGATIONS, IF ANY, AT LAW FOR THIRD PARTY CLAIMS FOR PROPERTY
DAMAGE, PERSONAL INJURY OR WRONGFUL DEATH.
6.2 GENERAL OPERATIONAL INDEMNITIES
PRIOR TO DELIVERY, THE SELLER AGREES TO INDEMNIFY AND TO KEEP
INDEMNIFIED AND TO HOLD HARMLESS THE BUYER, ITS OFFICERS,
EMPLOYEES, AGENTS REPRESENTATIVES AND SERVANTS (EACH A "BUYER
INDEMNITEE") ON ITS OR THEIR FIRST DEMAND AGAINST ALL AND ANY
CLAIMS, LOSSES, LIABILITIES, PROCEEDINGS AND ACTIONS ON A FULL
INDEMNITY BASIS WHICH MAY IN ANY WAY RESULT FROM OR ARISE IN ANY
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MANNER OUT OF OR IN CONNECTION WITH THE AIRCRAFT AND/OR THE
OPERATION, REPAIR, MAINTENANCE, ALTERATION, USE, HIRE, PURCHASE
AND/OR SALE OF THE AIRCRAFT.
WITH EFFECT FROM DELIVERY, THE BUYER AGREES TO INDEMNIFY AND TO
KEEP INDEMNIFIED AND TO HOLD HARMLESS THE SELLER, ITS OFFICERS,
EMPLOYEES, AGENTS REPRESENTATIVES AND SERVANTS (EACH A "SELLER
INDEMNITEE") ON ITS OR THEIR FIRST DEMAND AGAINST ALL AND ANY
CLAIMS, LOSSES, LIABILITIES, PROCEEDINGS AND ACTIONS ON A FULL
INDEMNITY BASIS WHICH MAY IN ANY WAY RESULT FROM OR ARISE IN ANY
MANNER OUT OF OR IN CONNECTION WITH THE AIRCRAFT AND/OR THE
OPERATION, REPAIR, MAINTENANCE, ALTERATION, USE, HIRE, PURCHASE
AND/OR SALE OF THE AIRCRAFT.
6.3 Insurances
Until the earlier of (1) the date which is two (2) years from the Delivery Date and (2) the date
of the first Major Check performed on the Aircraft after the Delivery Date, the Buyer shall, at
its cost, maintain insurances for legal liability to third parties and passengers in respect of the
Aircraft (including war and allied perils) which comply with the Insurance Requirements (as
so compliant, the "Insurances"). The Buyer shall, as a condition to Delivery, and thereafter
from time to time upon the reasonable request of any Seller Indemnitee, furnish evidence of
the Insurances being in force and effect and of the payment of all premiums in respect thereof.
7. TAXES AND PAYMENTS
7.1 Taxes
All amounts due and payable hereunder are expressed as amounts exclusive of any sales,
turnover or value added tax or similar taxes ("sales taxes") that may from time to time be
payable or chargeable on the provision or supply of the goods or services to which they relate,
and any sales taxes shall be payable by the relevant recipient of the supply who shall
indemnify and keep indemnified the person making the supply for the same on the supplier's
demand. The Seller and the Buyer agree that they will cooperate to a reasonable extent with
each other to eliminate or reduce the incidence of sales taxes with respect of the sale of the
Aircraft to the Buyer.
7.2 Payments
(a) All payments by the Buyer under this Agreement shall be made in full without any
deduction or withholding for or on account of tax or otherwise unless such deduction
or withholding is required by law in which event, the Buyer shall (i) ensure that the
deducti
ℹ️ Document Details
SHA-256
9eda13ab3fd45cbc81d3e340278ebbaf58195ecdf1640169ad0e635887141038
Bates Number
EFTA01119348
Dataset
DataSet-9
Document Type
document
Pages
27
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