MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS
MEMBERSHIP INTEREST PURCHASE AGREEMENT, dated March 16, 2021 (this
“Agreement”), is made by
and among AeroCentury Corp., a Delaware corporation
(“Seller”) and Drake Jet
Leasing 10 LLC, a Delaware limited liability company
(“Purchaser”).
W I T N E S S E T H:
WHEREAS, Seller
owns, beneficially and of record, as the “sole member,”
100% of the limited liability company membership interest (the
“LLC
Interest”) of ACY E-175 LLC, a Delaware limited
liability company (the “Company”);
WHEREAS, Purchaser
submitted an offer on 13 January 2021 to purchase from Seller, and
Seller has accepted the offer and has agreed to sell to Purchaser,
100% of the limited liability company membership interest of
Company the LLC Interest as evidenced by the Certificate No. 1
dated December 11, 2018 (the “Membership Certificate”)
on the terms and subject to the conditions set forth
herein;
WHEREAS, certain
capitalized terms used in this Agreement but not otherwise defined
in this Agreement are set out in Schedule
A;
NOW,
THEREFORE, in consideration of the foregoing and of the
representations, warranties, covenants and agreements contained
herein, and for other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE 1
PURCHASE
AND SALE OF LLC INTEREST
1.1. Purchase
and Sale of the LLC Interest. Upon the terms and subject to the conditions set
forth in this Agreement, at Closing Purchaser shall purchase from
Seller and Seller shall sell, convey, transfer, assign and deliver
to Purchaser, the LLC Interest free and clear of all Liens, other
than transfer restrictions imposed by national, federal or state
securities Laws, for an aggregate purchase price of Twenty Six
Million Five Hundred Thousand United States Dollars ($26,500,000)
(the “Purchase
Price”).
1.2. Purchase
Price and Payment.
(a) The Purchase Price
shall be payable:
(i) as to an amount of
thirteen million one hundred and eleven thousand seven hundred and
forty five United States Dollars and
forty three cents ($13,111,745.43) (the "Specified
Amount") in cash by
wire transfer of immediately available funds to the Specified
Account;
(ii) by
the Purchaser's assumption of all of the Seller's obligations under
the Existing Credit Agreement (the "Assumed
Obligations") pursuant to the
Credit Agreement Transfer Agreement, constituting an outstanding
aggregate amount of principal of thirteen million three hundred and
eighty eight thousand two hundred and fifty four United
States Dollars and fifty seven cents ($13,388,254.57) (the
"Assumed
Amount").
(b) Each of the Seller
and the Purchaser hereby agrees that:
(i) the sum of the
Specified Amount and the Assumed Amount equals the Purchase
Price;
(ii) the
Assumed Amount shall be netted from the Purchaser's obligation to
pay the corresponding amount of the Purchase Price in consideration
for the Purchaser's assumption of the Assumed Obligations;
and
(iii) the
Purchaser's (x) payment of the Specified Amount (pursuant to
Article 1.2(a)(i)) and (y) assumption of the Assumed Obligations
(pursuant to Article 1.2(a)(ii)) shall irrevocably and
unconditionally be deemed to constitute payment of the Purchase
Price in full.
(c) For the avoidance
of doubt, payment of the Specified Amount into the Specified
Account and the use and application thereof is subject in all
respects to the Proceeds Side Letter.
1.3. The
Closing. Subject to the
satisfaction or waiver of all the conditions to closing set forth
in Article 5 and the remaining provisions of this Article 1.3, the
closing of the purchase and sale of the LLC Interest (the
“Closing”)
shall take place by conference call and exchange of signature pages
by email, (a) effective at 12:00 noon Pacific Time on the Business
Day following the satisfaction or waiver of the conditions set
forth in Article 5 herein (other than those conditions that by
their terms or nature are to be satisfied by actions to be taken at
the Closing; provided, that such conditions are satisfied at the
Closing or waived by the party having the benefit of such
conditions), but in no event later than 12:00 noon Pacific Time on
March 5, 2021; or (b) at such other time and place as may be
mutually agreed upon by the parties hereto. The date on which the
Closing occurs is referred to herein as the
“Closing
Date".
1.4. Deliveries
at the Closing. The purchase
and sale of the LLC Interest and the payment of the Purchase Price
pursuant to the terms of this Agreement shall take place at the
Closing and, simultaneously, the other transactions contemplated by
this Agreement shall take place by the delivery of all of the
closing documents set forth in Article 5.
1.5. Tail
Insurance. Purchaser shall, or shall cause, Seller
Additional Insureds to be named as additional insureds on any
aviation liability insurance policy with respect to the Aircraft
maintained pursuant to the Lease or any replacement lease until the
date that is the earlier to occur of (a) two years after the
Closing Date and (b) the next "major check" of the
Airframe.
ARTICLE
2
REPRESENTATIONS AND WARRANTIES OF
SELLER
As an inducement to Purchaser to enter into this
Agreement, Seller hereby represents and warrants to
Purchaser as at the date hereof and on the Closing Date (in each
case by reference to facts and circumstances then existing) as
follows:
2.1. Organization.
Seller is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware, and has all requisite corporate power,
capacity and authority, and the full legal capacity, to own, lease
and operate its assets and properties and to conduct its business
as currently being conducted. The Company is a limited liability
company duly formed, validly existing and in good standing under
the laws of the State of Delaware, and the Company is qualified or
licensed to do business as a foreign company and is in good
standing in all jurisdictions in which the ownership of the
Company’s properties or the conduct of the Company’s
business requires the Company to be so qualified or licensed,
except where the failure to be so qualified or licensed has not
been and would not reasonably be expected to be, individually or in
the aggregate together with all such other failures, materially
adverse to the Company.
2.2. Authorization,
Validity and Enforceability. Seller has the full corporate
power and authority to enter into, deliver and perform its
obligations under this Agreement and the other Transaction
Documents (defined below). The execution, delivery and performance
by Seller of this Agreement and the other Transaction Documents and
the consummation by it of the transactions contemplated hereunder
and thereunder have been duly authorized by all necessary corporate
action on the part of Seller and no other proceedings on the part
of Seller are necessary to authorize this Agreement and the other
Transaction Documents or the transactions contemplated hereby or
thereby. This Agreement and the other Transaction Documents have
been or will be duly executed and delivered by Seller, and will,
upon the due execution and delivery thereof by Purchaser,
constitute the legal, valid and binding obligation of Seller
enforceable against it in accordance with the terms hereof or
thereof, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditor’s rights and remedies generally, and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or equity).
The Company has all requisite power and authority and all permits
necessary to own, lease and operate its properties and to carry on
its business as it has been and is now being conducted and to enter
into this Agreement and the other Transaction Documents to which it
is or will be a party and to perform its obligations hereunder and
thereunder. True and complete copies of the Constituent Documents
of the Company, which have been delivered to Purchaser, reflect all
amendments made thereto, and (a) such Constituent Documents are in
full force and effect and (b) the Company has not been and is not
in material violation of such Constituent Documents.
2.3. No
Violation. The execution, delivery and performance by Seller
of this Agreement and the other Transaction Documents and the
consummation of the transactions contemplated hereunder or
thereunder, do not and will not (a) conflict with, result in a
violation or breach of, constitute a default (or an event which
with the giving of notice or the lapse of time or both would
constitute a default) or give rise to any right of termination or
acceleration of any right or obligation under, or result in the
creation or imposition of any Lien (as defined below) upon any
assets or properties of Seller or the Company; (b) conflict with or
result in a violation or breach of or default under any provisions
of Seller’s or the Company’s Constituent Documents, as
applicable; or (c) conflict with or result in a violation of any
Law or Order to which Seller or the Company is
subject.
2.4. Consents
and Approvals. Except for the
NordLB/Security Trustee Consent, no consent, approval,
authorization, license or order of, registration or filing with, or
notice to, any Governmental Authority or any other Person (such
consents, approvals, authorizations, licenses, orders,
registrations, filings or notices being referred to collectively as
“Consents”)
is necessary to be obtained, made or given by Seller, Company or
the Owner Trustee in connection with the execution, delivery and
performance by Seller of this Agreement or any of the other
Transaction Documents or the consummation by Seller of the
transactions contemplated hereby or thereby.
2.5. Title
to Securities. As at the date
hereof and as of immediately prior to the Closing Date, Seller is
and will be the sole recorded and beneficial owner of and has and
immediately prior to Closing will have good and marketable title
to, the LLC Interest, free and clear of any Liens, other than the
Existing NordLB Security and/or any applicable restrictions on
transfer under any applicable state securities Laws Upon the
delivery of the LLC Interest and the other required Transaction
Documents as provided herein, Purchaser will acquire good and
marketable title to the LLC Interest, free and clear of any Liens
other than any generally applicable restrictions on transfer under
applicable state securities Laws, and Purchaser will be entitled to
all of the rights of a holder of such securities and there are no
voting trusts, shareholder agreements, proxies or any other
agreements, instruments or understandings with respect to the
voting or sale or transfer of the equity interests of the Company.
The LLC Interest constitute the only issued or outstanding equity
capital of the Company. All of the LLC Interests are duly
authorized and validly issued and, to the extent applicable, are
fully paid and non-assessable and were issued in compliance in all
material respects with all applicable Laws or pursuant to valid
exemptions therefrom.
2.6. Assets
of Company. The sole assets of the Company are the
Collateral Accounts and 100% of the beneficial interest (each, a
“Beneficial
Interest”) in each trust (each, a “Trust”) established
pursuant to each Trust Agreement dated as of 25 May 2007 between
Metropolitan Life Insurance Company ("MetLife") and Wells Fargo
Delaware Trust Company, not in its individual capacity, but solely
as Owner Trustee (“Owner Trustee”) relating
to the applicable Aircraft (defined below), each as transferred to
the Company pursuant to the applicable Assignment and Assumption
Agreement, each dated 31 December 2018 (each as amended from time
to time and as fully and accurately described in Schedule E
with respect to the applicable Aircraft, a “Trust Agreement” and
together, the "Trust
Agreements"). Seller has heretofore delivered to Purchaser a
complete copy of each Trust Agreement, as currently in effect and
each such Trust Agreement constitutes the entire agreement between
the Seller and the Owner Trustee with respect to the applicable
Beneficial Interest immediately prior to the Closing Date and there
have been no other amendments, modifications or assignments entered
into with respect to such Trust Agreement that will continue after
the Closing Date that have not been disclosed. The Company owns
full legal and beneficial title to each Beneficial Interest free
and clear of all Liens other than Liens created pursuant to the
Existing BISA and each Trust owns good and marketable legal title
to the applicable Aircraft, respectively, free and clear of all
Liens other than (i) Permitted Liens (excluding Lessor Liens) under
(and as defined in) each applicable Lease and (ii) the Existing
Security Agreement.
2.7. Legal
Proceedings. There are no pending or threatened actions,
suits, claims, proceedings or investigations against or involving
Seller, Company, or each Trust (Company and each Trust
collectively, hereinafter referred to as the “Acquired
Entities” and respectively, as a “Acquired
Entity”). Neither Seller nor any Acquired Entity is bound by
or subject to any Order.
2.8. No
Employees. No Acquired Entity has employees.
2.9. No
Other Business. No Acquired Entity is engaged in any
business other than the leasing of each Aircraft pursuant to the
applicable Lease.
2.10. No
Undisclosed Liabilities or Obligations. No Acquired Entity
has any liabilities or obligations other than pursuant to (i) the
applicable Lease and documents related thereto or (ii) the Trust
Agreements, the Existing Loan Agreement and the other Existing Loan
Documents.
2.11. Lease.
To the Seller's knowledge (after having made due and careful
enquiry and having received written confirmation from the Owner
Trustee that there exists no Specified Default (as defined in each
Lease), there exists no Specified Default (as defined in each
Lease) by Owner Trustee or Lessee under the applicable Lease.
Lessee has not made any prepayment of Basic Rent (as defined in
each Lease) payable to Owner Trustee under any Lease. Set forth
in Schedule
C is a complete and accurate list of documents that
relate to each Lease (copies of which have heretofore been
delivered to Purchaser) and such Lease Documents constitute the
entire agreement between the applicable Owner Trustee (and Company,
as applicable) and Lessee with respect to the leasing of the
applicable Aircraft immediately prior to the Closing Date and there
have been no other amendments, modifications, consents or
assignments or waivers granted with respect to such Lease Documents
(or any matters pertaining thereto) that will continue after the
Closing Date that have not been disclosed. Neither Seller
nor any Acquired Entity owns any real property.
2.12. Contracts.
Except for this Agreement and those agreements set forth in
Schedule C
(the “Material
Agreements”), there are no agreements, understandings,
instruments, contracts, proposed transactions, judgments,
governmental orders, writs or decrees to which an Acquired Entity
is a party or by which such Acquired Entity is bound. No Acquired
Entity is in breach of or default under any Material Agreement and
there is no current claim or threatened claim that any Acquired
Entity is or has been in breach of or default under any Material
Agreement. Each Material Agreement is in full force and effect and
is enforceable against the applicable Acquired Entity and the other
party thereto, in accordance with its respective terms. Seller has
provided Purchaser true and complete copies of each Material
Agreement.
2.13. Existing
Financing. No Default (as defined in the Existing Credit
Agreement) exists under the terms of the Existing Credit Agreement
or the other Existing Loan Documents. The Existing Credit Agreement
together with the Existing Loan Documents (Credit Agreement
Amendment, the Existing MI Pledge Release and New MI Pledge)
constitute the entire agreement among the Seller, the Company
and/or the Owner Trustee and NordLB and/or the Security Trustee
entered into prior to (or, in the case of the Credit Agreement
Amendment, Existing MI Pledge Release and New MI Pledge), at the
Closing Date which will remain in effect following the Closing Date
with respect to the financing of the Aircraft (other than as
contemplated by the Credit Agreement Amendment, the Existing MI
Pledge Release and the New MI Pledge) and there have been no other
amendments, waivers or modifications entered into or granted with
respect to such Existing Credit Agreement or Existing Loan
Documents that will continue to have effect following the Closing
Date which have not been disclosed.
2.14. Tax
Matters. The
Company
has been since the date of its formation, and will be immediately
prior to the Closing, classified as an entity
“disregarded” as separate from its owner, Seller, for
all income Tax purposes (including under Treasury Regulations
Section 301.7701-3) and no election has ever been or will be
filed prior to the Closing to classify the Company as an
association taxable as a corporation for income Tax purposes. Each
Trust is properly treated, and will be so immediately prior to the
Closing, as a grantor trust for federal income Tax purposes in
accordance with Sections 671-678 of the Internal Revenue Code of
1986, as amended, and no election has ever been or will be filed
prior to the Closing to classify any Trust as an association
taxable as a corporation for income Tax purposes.
2.15. Tax
Filings. Subject to applicable extensions, each Acquired
Entity has filed or caused to be filed, all Tax returns that it was
required to file prior to the Closing, and has paid all Taxes shown
thereon as owing. All such Tax returns were true, correct and
complete in all material respects. Neither Seller nor any Acquired
Entity has received any notice of deficiency, assessment, audit,
investigation, or proposed deficiency, assessment or audit with
respect to any Acquired Entity or the conduct of their respective
businesses. No Acquired Entity has waived any statute of
limitations in respect of Taxes or agreed to any extension of time
with respect to any Tax assessment or deficiency.
2.16. Compliance
with Laws. Since January 1, 2019, each Acquired Entity
has complied in all material respects with all applicable Laws of
Governmental Authorities in effect on or prior to the Closing Date
which apply to such Acquired Entity or to which such Acquired
Entity may otherwise be subject, including the Customs and
International Trade Laws and the FCPA, and neither Seller nor any
Acquired Entity has received written notice of, and no claims have
been filed against any Acquired Entity alleging, any violation by
such Acquired Entity of any such Law, except any immaterial
violations that have been corrected.
2.17. Absence
of Certain Developments. Since January 1, 2020, the Acquired
Entities have operated in all material respects in the ordinary
course of business and since the date of this Agreement through the
Closing Date there has not been any action or event that would have
required Purchaser’s consent pursuant to Article 4.1
had such action or event occurred after the date hereof and no
events or circumstances exist under the terms of the Existing
Credit Agreement that, individually or in combination with any
other effect, would reasonably be expected to result in a material
adverse change.
2.18. Brokerage.
No Person is entitled to any brokerage commissions, financial
advisors’ fees, finders’ fees or similar compensation
in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement made by or on behalf of
Seller or any Acquired Entity
2.19. Disclosures.
None of the information concerning Seller or any Acquired Entity in
this Agreement or in the other Transaction Documents or in any
schedule or exhibit hereto or thereto, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements contained herein or therein, in
light of the circumstances existing when made,
misleading.
2.20. Accounts;
Cash Balance. As at Closing, there exists a cash balance in
the Collateral Accounts as set forth in the definition of
“Collateral Accounts” in Schedule A
hereto.
2.21. Survival.
The representations and warranties of Seller contained herein shall
survive the Closing Date.
2.22. DISCLAIMER.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES AS SET FORTH IN
ARTICLE 2 HEREOF, SELLER HAS NOT MADE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESSED OR IMPLIED, RELATING TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AND SUBJECT TO THE REPRESENTATIONS
AND WARRANTIES SET FORTH IN ARTICLE 2 HEREOF, SELLER’S RIGHTS
WITH RESPECT TO THE TRANSFERRED RIGHTS ARE BEING ACQUIRED BY
PURCHASER ON AN "AS IS, WHERE IS" BASIS.
ARTICLE
3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this
Agreement, Purchaser hereby represents and warrants to
Seller as at the date hereof and on the Closing Date (in each case
by reference to facts and circumstances then existing) as
follows:
3.1. Organization.
Purchaser is a limited liability company duly incorporated, validly
existing and in good standing under the laws of Delaware,
USA.
3.2. Authorization,
Validity and Enforceability. Purchaser has the full
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the other Transaction
Documents to which Purchaser is a party. The execution, delivery
and performance by Purchaser of this Agreement and each of the
other Transaction Documents and the consummation by Purchaser of
the transactions contemplated hereunder and thereunder have been
duly authorized by all necessary corporate action on the part of
Purchaser, and no other corporate proceedings on the part of
Purchaser are necessary to authorize this Agreement and the other
Transaction Documents to which Purchaser is a party. This Agreement
and the other Transaction Documents have been or will be duly
executed and delivered by Purchaser and will, upon the due
execution and delivery thereof by Seller, as applicable, constitute
the legal, valid and binding obligation of Purchaser enforceable
against it in accordance with the terms hereof and thereof, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditor’s rights and remedies generally, and subject, as to
enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or
equity).
3.3. No
Violation or Breach. The execution, delivery and performance
by Purchaser of this Agreement and each of the other Transaction
Documents to which it is a party, and the consummation of the
transactions contemplated hereunder and thereunder, do not and will
not conflict with, result in a violation or breach of, constitute a
default (or an event which with the giving of notice or the lapse
of time or both would constitute a default).
3.4. Consents
and Approvals. No Consent of any Governmental Authority or
any other Person is necessary to be obtained, made or given by
Purchaser in connection with the execution, delivery and
performance by Purchaser of this Agreement and the other
Transaction Documents or the consummation by Purchaser of the
transactions contemplated hereunder or thereunder.
3.5. Legal
Proceedings. There are no pending or threatened actions,
suits, claims, proceedings or investigations against or involving
Purchaser, except as would not materially and adversely affect, and
would not reasonably be expected to prevent or materially delay or
impair, Purchaser’s performance under this Agreement and the
Transaction Documents to which Purchaser is or will be a party or
the consummation of the transactions contemplated hereunder or
thereunder.
3.6. Brokerage.
No Person is entitled to any brokerage commissions, financial
advisors’ fees, finders’ fees or similar compensation
in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement made by or on behalf of
Purchaser.
3.7. Survival.
The representations and warranties of Purchaser contained herein
shall survive the Closing Date.
ARTICLE
4
PRE-CLOSING COVENANTS
4.1. Conduct
of Business. From the date hereof until the earlier of the
Closing Date or the date of any termination of this Agreement
pursuant to Article 6.1 hereof, except as otherwise required or
contemplated hereunder or under any other Transaction Document or
upon the prior written approval of Purchaser, (a) Seller will cause
the Acquired Entities to conduct their operations only in the
ordinary course of business consistent with past practice and (b)
Seller will not, and will not cause any Acquired Entity to,
knowingly take any action that would, or would be reasonably likely
to, result in any of the representations and warranties set forth
in Article 3 hereof not being true in all material respects or
result in any of the conditions set forth in Article 5 hereof not
being satisfied. Without limiting the generality of the foregoing,
during such period, except as otherwise required or contemplated
hereunder or under any other Transaction Document, Seller will not
take any action to cause or enable any Acquired Entity to, directly
or indirectly (i) amend its Constituent Documents and/or any
Lease (ii) authorize for issuance, issue, sell, deliver or
agree or commit to issue, sell or deliver (whether through the
issuance or granting of options, warrants, commitments,
subscriptions, rights to purchase or otherwise) any limited
liability company membership interests or any other securities or
equity equivalents, (iii) split, combine or reclassify its
limited liability company membership interests, or declare, set
aside or pay any distribution in respect of its limited liability
company membership interests, or redeem, purchase or otherwise
acquire (or agree to redeem, purchase or otherwise acquire) its
limited liability company membership interests, (iv) adopt a plan
of complete or partial liquidation, dissolution, merger,
consolidation, restructuring, recapitalization or other
reorganization or (v) make any change in any financial reporting or
accounting practices.
4.2. Access
to Information; Consultation. From the date hereof until the
earlier of the Closing Date or the date of any termination of this
Agreement pursuant to Article 6.1 hereof, Seller will assist and
will not take any action to prevent Purchaser and its
representatives to have access during normal business hours to the
books, records and files of the Acquired Entities upon reasonable prior written request by
Purchaser.
4.3. Commercially
Reasonable Efforts. Each of the parties hereto shall use its
commercially reasonable efforts to cause the fulfillment as soon as
practicable following the date of this Agreement of all of the
conditions to its respective obligations to consummate the
transactions contemplated hereby and by the other Transaction
Documents.
ARTICLE
5
CONDITIONS TO THE CLOSING
5.1. Mutual
Condition to the Closing. The obligations of Seller to sell,
and of Purchaser to purchase, the LLC Interest at the Closing shall
be subject to no Illegality Event having occurred and being
continuing.
5.2. Additional
Conditions to the Obligations of Seller. The obligation of
Seller to sell the LLC Interest at the Closing shall be subject to
the satisfaction of the following conditions (in addition to the
condition specified in Article 5.1 hereof) at or prior to the
Closing:
(a) NordLB shall
deliver to Seller a release of all obligations of Seller to the
Company and to NordLB under the Existing Loan Documents, including,
without limitation, the Seller’s obligations under the
Indemnity Agreement and the Borrower Parent Pledge Agreement
(Republic Borrower) (each as defined in the Existing Loan
Documents), in form and substance satisfactory to
Seller;
(b) Purchaser shall
provide to Seller such information regarding Purchaser, its
management and ownership necessary for Purchaser to complete its
Know-Your-Customer and United States export control and United
States Treasury compliance obligations, and any other applicable
Customs and International Trade Laws; and
Any
condition specified in this Article 5.2 may be waived by Seller;
provided, that no such waiver shall be effective unless it is set
forth in a writing executed by Seller.
5.3. Additional
Conditions to the Obligations of Purchaser. The obligation
of Purchaser to purchase the LLC Interest at the Closing shall be
subject to the satisfaction of the following conditions (in
addition to the condition specified in Article 5.1 hereof) at or
prior to the Closing:
(a) the representations
and warranties of Seller contained in Article 3 of this Agreement
shall be true and correct in all material respects, as of the date
of this Agreement and as of the Closing Date;
(b) Purchaser shall
have received copies of all Transaction Documents duly executed by
each of the parties thereto (other than Purchaser);
(c) Seller shall have
performed and complied in all material respects with all agreements
and covenants required to be performed by it hereunder at or prior
to the Closing;
(d) Seller shall have
delivered to Purchaser a certified copy of the resolutions of its
board of directors, authorizing this Agreement and the other
Transaction Documents and the transactions contemplated hereby and
thereby, which resolutions shall not have been amended, modified,
superseded or revoked together with an incumbency certificate of
Seller as to the persons authorized to execute and deliver this
Agreement and each other Transaction Document to which Seller is or
will be a party, including the signatures of each such
person;
(e) Seller shall have
delivered to Purchaser the Operating Agreement and the Certificate
of Formation of Company;
(f) Seller shall have
delivered a membership transfer power, in a form reasonably
satisfactory to Purchaser evidencing transfer of the Membership
Certificate representing the LLC Interest to
Purchaser;
(g) the Credit
Agreement Amendment shall have been duly executed and delivered by
NordLB and the Security Trustee;
(h) Purchaser shall
have completed a satisfactory due diligence review of the Company,
each Trust, each Lease and Lease Documents, the Existing
Credit Agreement and the other Existing Loan Documents and related
documents;
(i) Seller shall have
tendered, effective as of the Closing, its resignation as manager
of the Company;
(j) there shall have
been no Event of Loss with respect to an Aircraft or material
damage to such Aircraft for which the likely cost of repair would
exceed [two million United States Dollars
($2,000,000);
(k) Purchaser shall be
satisfied that no Taxes will arise or be payable by it on the
completion of and as a result of the transactions contemplated by
this Agreement as at Closing; and
(l) Purchaser shall
have received evidence that Purchaser and any Purchaser Additional
Insureds are named as additional insureds in the liability
insurance maintained pursuant to each Lease.
Any
condition specified in this Article 5.3 may be waived by Purchaser;
provided, that no such waiver shall be effective unless it is set
forth in a writing executed by Purchaser.
ARTICLE
6
TERMINATION
6.1. Termination
of Agreement. This Agreement may be terminated at any time
prior to the Closing:
(a) by either Purchaser
or Seller, if any Law or Order that would prevent the satisfaction
of the condition to the obligations of Purchaser set forth in
Article 5.2 or the condition to the obligations of Seller set forth
in Article 5.3 shall have become final and non-appealable;
or
(b) by mutual written
consent of Purchaser and Seller.
6.2. Effect
of Termination. In the event of the termination of this
Agreement pursuant to Article 6.1 hereof, this Agreement shall
thereafter be terminated and have no effect, and no party hereto
shall have any liability or obligation to any other party hereto in
respect of this Agreement, except that (a) the obligations of the
parties pursuant to Article 7.2, Article 7.7 hereof and this
Article 6.2 shall survive any such termination and (b) no party
shall be relieved of any liability for any breach of its
representations, warranties, covenants or agreements contained
herein prior to such termination.
ARTICLE 7
MISCELLANEOUS
7.1. Disclaimer
of Warranties on the Company’s Assets.
EXCEPT
FOR THE REPRESENTATIONS AND WARRANTIES AS SET FORTH IN ARTICLE 2
HEREOF, SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES,
EXPRESSED OR IMPLIED, RELATING TO THE AIRCRAFT OR ANY PART THEREOF
AND PURCHASER ACKNOWLEDGES THAT THE AIRCRAFT ACQUIRED BY PURCHASER
THROUGH ITS PURCHASE OF THE LLC INTEREST ARE PURCHASED ON AN "AS
IS, WHERE IS AND WITH ALL FAULTS" BASIS.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SELLER HAS NOT MADE ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE
AIRWORTHINESS, CONDITION, VALUE, DESIGN, OPERATION,
MERCHANTABILITY, COMPLIANCE WITH SPECIFICATIONS, CONSTRUCTION,
PERFORMANCE OR FITNESS FOR USE OR FOR ANY PURPOSE OF THE AIRCRAFT
OR ANY PART THEREOF, AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS,
WHETHER OR NOT DISCOVERABLE, AS TO THE ABSENCE OF ANY INFRINGEMENT
OF ANY PATENT, TRADEMARK OR COPYRIGHT, AS TO THE ABSENCE OF
OBLIGATIONS BASED ON LIABILITY IN TORT, STRICT OR OTHERWISE, AS TO
FREEDOM FROM INTERFERENCE IN POSSESSION OR USE, OR AS TO THE
QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE AIRCRAFT OR ANY PART
THEREOF OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS
OR IMPLIED, WITH RESPECT TO THE AIRCRAFT OR ANY PART
THEREOF.
7.2. Notices.
Any notices and other communications given pursuant to this
Agreement shall be in writing and shall be effective upon delivery
(a) by hand or upon receipt if sent by certified or registered mail
(postage prepaid and return receipt requested) or by an
internationally recognized overnight courier service (appropriately
marked for overnight delivery) or (b)
when transmitted by electronic mail if sent before 5:00 p.m. on a
Business Day (otherwise the next Business Day) or the day following
such day (except if not a Business Day then the next Business
Day)Notices are to be addressed as follows:
if to Purchaser:
Drake
Jet Leasing 10 LLC
c/o
Maples Fiduciary Services (Delaware) Inc.
Suite
302, 4001 Kennett Pike,
Wilmington,
DE 19807
USA
Attn:
Fiduciary Services
Email:
XXXXXXXX
with a
copy to:
Falko
Regional Aircraft Limited
1
Bishop Square
St.
Albans Rd. West
Hatfield
AL10 9NE
Attn:
Sarah Dichlian
Email:
XXXXXXXXX
if to Seller:
AeroCentury
Corp.
1440
Chapin Avenue, Suite 310
Burlingame,
CA94010-4011
Attn:
Harold M. Lyons / Christopher B. Tigno
Email:
XXXXXXXX
or to
such other respective addresses as any of the parties hereto shall
designate to the others by like notice, provided that notice of a
change of address shall be effective only upon receipt
thereof.
7.3. Fees
and Expenses. Except as otherwise expressly provided herein,
Seller shall be responsible for and shall pay the costs and
expenses incurred by it in connection with the negotiation and
drafting of this Agreement and the consummation of the transactions
contemplated hereby, including attorneys’ fees and expenses
and the Purchaser shall be responsible for and shall pay the costs
and expenses incurred by it in connection with the negotiation and
drafting of this Agreement and the consummation of the transactions
contemplated hereby, including attorneys’ fees and expenses.
In addition, the Purchaser shall pay the costs and expenses of
Lessee, NordLB, FAA Counsel including all related filing fees and
registration fees (including those relating to any related filings
in the State of Delaware), in each case in amounts subject to
agreement in writing in advance.
7.4. Entire
Agreement; Waivers and Amendments. This Agreement and the
other Transaction Documents (including the exhibits and schedules
hereto and thereto and the documents and instruments referred to
herein and therein) contain the entire agreement and understanding
of the parties with respect to the subject matter hereof and
thereof and supersedes all prior written or oral agreements and
understandings with respect thereto. This Agreement may only be
amended or modified, and the terms hereof may only be waived, by a
writing signed by all parties hereto or, in the case of a waiver,
by the party entitled to the benefit of the terms being
waived.
7.5. Taxes.
Seller shall be responsible for paying all capital gains, income,
gross receipts, transfer, stock transfer, stamp, recording,
registration, documentary, sales, use, value added, excise and any
similar taxes, and all conveyance fees and recording charges
(including any penalties, additions to tax and interest thereon)
assessed by the United States or any taxing subdivision thereof
("Taxes") incurred
in connection with the consummation of the purchase and sale of the
LLC Interest or any of the other transactions contemplated by this
Agreement or the other Transaction Documents.
7.6. Assignment;
Binding Effect. This Agreement may not be assigned or
delegated, in whole or in part, by any party hereto without the
prior written consent of the other party hereto. This Agreement
shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representatives,
successors and assigns.
7.7. Severability.
In the event that any provision of this Agreement shall be declared
invalid or unenforceable by a court of competent jurisdiction in
any jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent declared invalid or unenforceable without
affecting the validity or enforceability of the other provisions of
this Agreement, and the remainder of this Agreement shall remain
binding on the parties hereto. However, in the event that any such
provision shall be declared unenforceable due to its scope, breadth
or duration, then it shall be modified to the scope, breadth or
duration permitted by law or Governmental Authority and shall
continue to be fully enforceable as so modified.
7.8. No
Third Party Beneficiaries. This Agreement is for the benefit
of the parties hereto and is not intended to confer upon any other
person any rights or remedies hereunder.
7.9. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTION
5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
7.10. Jurisdiction.
The parties agree that the federal and state courts located in New
York, New York (in the Borough of Manhattan) are to have
non-exclusive jurisdiction to settle any disputes in connection
with this Agreement and the other documents related hereto and
submit to the jurisdiction of such courts in connection with this
Agreement and the other documents related hereto.
(a) Each Party
hereto:
(i) waives objection to
such courts on grounds of inconvenient forum, venue or otherwise as
regards proceedings in connection with this Agreement and other
documents related hereto; and
(ii) agrees
that (subject to permitted appeals) a judgment or order of such a
court in connection with this Agreement or the other documents
related hereto is conclusive and binding on it and may be enforced
against them in the courts of any other jurisdiction.
(b) Nothing in this
Article 7.9 limits the right of either party to bring proceedings
in connection with this Agreement or any other document related
hereto:
(i) in any other court
of competent jurisdiction; or
(ii) concurrently
in more than one jurisdiction.
7.11. Specific
Performance. Each of the parties hereto acknowledges that
the rights of each party to consummate the transactions
contemplated hereby are unique and recognize and affirm that in the
event of a breach of this Agreement by any party, money damages may
be inadequate and the non-breaching party may have no adequate
remedy at Law. Accordingly, the parties agree that such
non-breaching Party shall have the right, in addition to any other
rights and remedies existing in their favor at law or in equity, to
enforce their rights and the other Party’s obligations
hereunder not only by an action or actions for damages but also by
an action or actions for specific performance, injunctive and/or
other equitable relief (without posting of bond or other
security).
7.12. Prevailing
Party. In the event any litigation or other court action,
arbitration or similar adjudicatory proceeding is commenced or
threatened by any party hereto to enforce its rights under this
Agreement against any other party, all fees, costs and expenses,
including, without limitation, reasonable attorneys’ fees and
court costs, incurred by the party prevailing in such proceeding
shall be reimbursed by the other party(ies); provided, that if the
prevailing party prevails in part, and loses in part, in such
proceeding, the court, arbitrator or other adjudicator presiding
over such proceeding shall award a reimbursement of the fees, costs
and expenses incurred by the prevailing party on an equitable
basis.
7.13. Captions.
The Article headings in this Agreement are inserted for convenience
of reference only, and shall not affect the interpretation of this
Agreement.
7.14. Counterparts.
This Agreement may be executed in two or more counterparts
(including by electronic means or
.PDF), each of which shall be deemed an original and all of
which together shall be considered one and the same
agreement.
* *
*
IN
WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first written above.
PURCHASER:
DRAKE JET
LEASING 10 LLC
By:
_________________________
Name:
Title:
SELLER:
AEROCENTURY
CORP.
By:
_________________________
Name:
Title:
SCHEDULE A
CERTAIN DEFINED TERMS
(a) “Aircraft” means, each of
and collectively, the aircraft described in Schedule
B.
(b) “Assets” of any Person
means all assets and properties of every kind (whether real,
personal or mixed, whether tangible or intangible and wherever
situated), including the goodwill related thereto, operated, owned
or leased by such Person.
(c) “Business
Day” has the meaning given to that term in the
Existing Credit Agreement.
(d) “Collateral Accounts”
means the two bank accounts of the Company held with Wilmington
Trust Company in the name of the Company and charged in favor of
NordLB in connection with the Existing Credit Agreement, which have
the following account balances:
|
Account
Number
|
Account
Balance
|
|
XXXXXXXXXX
|
$52,900.90
|
|
XXXXXXXXXX
|
$2,346,266.27
|
(e) “Constituent Documents”
means the certificate or articles of incorporation and bylaws of
any corporate Person, the certificate of formation, articles of
organization and limited liability company agreement of any Person
that is a limited liability company and the certificate of limited
partnership and partnership agreement of any Person that is a
partnership, and any other similar governing or constituent
document, as applicable.
(f) “Customs and International Trade
Laws” means any domestic law, statute, Order of a
Governmental Authority, regulation, rule, permit, license,
directive, ruling, decree, ordinance, award, or other decision or
requirement, including any amendments, having the force or effect
of law, of any arbitrator, court, government or government agency
or instrumentality or other Governmental Authority, concerning the
importation, exportation, reexportation, or deemed exportation of
products, technical data, technology or services, and the terms and
conduct of transactions and making or receiving of payment related
to such importation, exportation, reexportation or deemed
exportation, including, but not limited to, as applicable, the
Tariff Act of 1930, as amended, and other laws, regulations, and
programs administered or enforced by the U.S. Department of
Commerce (“Commerce”), U.S.
International Trade Commission, U.S. Customs and Border Protection,
U.S. Immigration and Customs Enforcement, and their predecessor
agencies; the Export Administration Act of 1979, as amended; the
Export Administration Regulations, including related restrictions
with regard to transactions involving persons and entities on the
Commerce Denied Persons List or Entity List; the Arms Export
Control Act, as amended; the International Traffic in Arms
Regulations, including related restrictions with regard to
transactions involving Persons on the Debarred List; the
International Emergency Economic Powers Act, as amended; the
Trading With the Enemy Act, as amended; the embargoes and
restrictions administered by the United States Office of Foreign
Assets Control (“OFAC”); orders of the
President regarding embargoes and restrictions on transactions with
designated countries and entities, including persons and entities
designated on OFAC’s list of Specially Designated Nationals
and Blocked Persons; the anti-boycott regulations administered by
Commerce; and the anti-boycott regulations administered by the U.S.
Department of the Treasury.
(g) “Credit Agreement
Amendment” means an amendment to the Existing Credit
Agreement among the Company, NordLB and the Security
Trustee.
(h) “Credit Transfer
Agreement” means any agreement or instrument by which
the Purchaser assumes the Seller's obligations under the Existing
Credit Agreement.
(i) "Existing BISA" means each
Beneficial Interest Security Agreement dated as of 8 February 2019
between the Company, as pledgor and the Security Trustee relating
to the applicable Beneficial Interest and Trust.
(j) “Existing Credit
Agreement” means the Credit Agreement dated as of
February 7, 2019 among the Company, the other borrowers listed
therein, the participants party thereto, NordLB and the Security
Trustee.
(k) “Existing Loan Documents”
means each Loan Operative Document as such term defined in the
Existing Credit Agreement.
(l) “Existing MI Pledge” means
the Membership Interest Pledge Agreement dated as of 8 February
2019 between Seller, as pledgor and Security Trustee.
(m) "Existing MI Pledge Release"
means a release and termination by the Security Trustee of the
Existing MI Pledge.
(n) “Existing Security
Agreement” means the Security Agreement dated as of
February 19, 2019 between each of the Borrower’s under the
Existing Credit Agreement and the Security Trustee.
(o) “FCPA” means the Foreign
Corrupt Practices Act of 1977, as amended.
(p) “Governmental Authority”
means any foreign, federal, provincial, local or other governmental
authority, court, tribunal, bureau, board, commission, office,
authority, regulatory body, self-regulatory body or any
quasi-governmental entity, any political or other subdivision,
department, agency or branch of any of the foregoing, including any
supranational body, or any arbitrator, arbitral body or
meditator;
(q) "FAA Counsel" means McAfee &
Taft.
(r) "Illegality Event" means an
injunction, order, decree or judgment issued by any governmental
authority of competent jurisdiction and being in effect which
restrains or prohibits the consummation of the purchase and sale of
the LLC Interest or any of the other transactions contemplated by
this Agreement or the other Transaction Documents.
(s) “Laws” means any
international, national, federal, state or local laws,
constitutions, treaties, conventions, statutes, ordinances, codes,
rules, regulations or common laws or other similar requirements
enacted, adopted, promulgated or applied by any Governmental
Authority, each as amended.
(t) “Lease”
means, in relation to an Aircraft, each lease agreement described
in Schedule
C relating to
that Aircraft (each as
assigned, transferred and/or varied from time to time, including by
the other Lease Documents relating to that Aircraft, together, the
"Leases").
(u) "Lease Amendment Agreement"
means, in relation to each Lease, each lease amendment agreement
relating to that Lease dated on or before the Closing Date between
the Seller and the Lessee.
(v) "Lease Documents" means, in
relation to an Aircraft, the documents listed in Schedule C
relating to that Aircraft.
(w) "Lessee" means Republic Airways
Inc..
(x) “Lien” means any charge,
claim, adverse interest, community property interest, pledge,
hypothecation, condition, lien (statutory or other), option,
security interest, mortgage, deed of trust, encumbrance, easement,
encroachment, license, sublicense, right of way, right of first
refusal, or other restriction on title or transfer or, in the case
of equity, voting or receipt of income.
(y) "New MI Pledge" means a
membership interest pledge agreement in the same form as the
Existing MI Pledge, between Purchaser, as pledgor and Security
Trustee.
(z) "NordLB" means Norddeutsche
Landesbank Girozentrale, New York, as Agent and Norddeutsche
Landesbank Girozentrale, as swap counterparty acting in any of such
capacities under the Existing Credit Agreement.
(aa) "NordLB/Security
Trustee Consent" means a consent agreement or agreements
covering all of the Aircraft executed by NordLB and the Security
Trustee dated on or before the Closing Date relating to the
Existing Credit Agreement and consenting to the transactions
contemplated by this Agreement.
(bb) “Order”
means any judgment, order, injunction (including any preliminary
injunction), decision, determination, award, ruling, writ,
stipulation, restriction, assessment or decree of, or entered by,
with or under the supervision of, any Governmental Authority, each
as amended.
(cc) “Person”
means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust,
a joint venture, an unincorporated organization, any other business
entity or a Governmental Authority or governmental entity (or any
department, agency or political subdivision thereof).
(dd) "Proceeds
Side Letter" means a side letter dated on or before the
Closing Date relating to, inter
alia, the application of the Purchase Price between the
Seller, the Purchaser and Drake Asset Management Jersey
Limited
(ee) “Purchaser
Additional Insureds” means Purchaser, Falko Regional Aircraft
Limited and their respective officers, directors, employees,
agents, servants, successors and permitted assigns.
(ff) “Seller
Additional Insureds” means “AeroCentury Corp. and
JetFleet Management Corp., Wells Fargo Delaware Trust Company
National Association, and their respective officers, directors,
employees, agents, servants, successors and permitted
assigns.
(gg) “Security
Trustee” means Wilmington Trust Company, as security
trustee.
(hh) "Specified
Account" means the following account of the
Seller:
Zions
Bancorporation, N.A.
465
California St.
San
Francisco, CA 94104
ABA:
121 002 042
SWIFT:
ZFNBUS55
Account
name: AeroCentury Corp.
Account
number: 1750000381.
(ii) "Taxes"
has the meaning given to it in Article 7.4.
(jj) "Transaction
Documents" mean, together, this Agreement, the Existing MI
Pledge Release, each Lease Amendment Agreement, the NordLB/Security
Trustee Consent, the New MI Pledge, the Proceeds Side Letter and
any notice, acknowledgement, instrument or other document required
to be entered into in connection with the foregoing.
SCHEDULE B
AIRCRAFT DESCRIPTION
|
Manufacturer
|
Serial Number
|
Model
|
Engine #1
|
Engine #2
|
|
Embraer
|
17000168
|
ERJ
170-200LR
|
193478
|
193479
|
|
Embraer
|
17000172
|
ERJ
170-200LR
|
193484
|
193489
|
|
Embraer
|
17000173
|
ERJ
170-200LR
|
193492
|
193499
|
SCHEDULE C
LEASE DOCUMENTS
|
Republic Airways
|
|
MSN 17000168
|
|
Lease
Agreement [N109HQ] dated 29 May 2007 between Wells Fargo Delaware
Trust Company, not in its individual capacity but solely as owner
trustee and Republic Airways Inc. (formerly, Republic Airline,
Inc.)
Lease
Supplement No.1 [N109HQ] dated 29 May 2007 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
Return
Side Letter [N109HQ] dated 29 May 2007 between Wells Fargo Delaware
Trust Company, not in its individual capacity but solely as owner
trustee, Republic Airways Inc. and Metropolitan Life Insurance
Company.
Participation
Agreement [N109HQ] dated 29 May 2007 between Wells Fargo Delaware
Trust Company, not in its individual capacity but solely as owner
trustee, Republic Airways Inc. and Metropolitan Life Insurance
Company.
Engine
Warranty Assignment Agreement [N109HQ] dated 29 May 2007 between GE
Engines Services, Inc. and Wells Fargo Delaware Trust Company, not
in its individual capacity but solely as owner trustee and
consented to by General Electric Company and GE Engine Services
Distribution, LLC.
Guaranty
dated 29 May 2007 between Republic Airways Holdings Inc., Wells
Fargo Delaware Trust Company, not in its individual capacity but
solely as owner trustee and Metropolitan Life Insurance
Company.
Tax
Indemnity Agreement [N109HQ] dated 29 May 2007 between Republic
Airways Inc. and Metropolitan Life Insurance Company.
Amendment
No.1 to Lease Agreement (N109HQ) dated 10 October 2016 between
Wells Fargo Delaware Trust Company, not in its individual capacity
but solely as owner trustee and Republic Airways Inc.
Lease
Agreement No.2 (N109HQ) dated 26 July 2017 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
Lease
Agreement No.3 (N109HQ) dated 31 December 2018 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
Lease
Agreement No.4 (N109HQ) dated 8 February 2019 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
|
|
MSN 17000172
|
|
Lease
Agreement [N110HQ] dated 28 June 2007 between Wells Fargo Delaware
Trust Company, not in its individual capacity but solely as owner
trustee and Republic Airways Inc. (formerly, Republic Airline,
Inc.)
Lease
Supplement No.1 [N110HQ] dated 28 June 2007 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
Participation
Agreement [N110HQ] dated 28 June 2007 between Wells Fargo Delaware
Trust Company, not in its individual capacity but solely as owner
trustee, Republic Airways Inc. and Metropolitan Life Insurance
Company.
Engine
Warranty Assignment Agreement [N110HQ] dated 28 June 2007 between
GE Engines Services, Inc. and Wells Fargo Delaware Trust Company,
not in its individual capacity but solely as owner trustee and
consented to by General Electric Company and GE Engine Services
Distribution, LLC.
Guaranty
dated 28 June 2007 between Republic Airways Holdings Inc., Wells
Fargo Delaware Trust Company, not in its individual capacity but
solely as owner trustee and Metropolitan Life Insurance
Company.
Tax
Indemnity Agreement [N110HQ] dated 28 June 2007 between Republic
Airways Inc. and Metropolitan Life Insurance Company.
Amendment
No.1 to Lease Agreement (N110HQ) dated 10 October 2016 between
Wells Fargo Delaware Trust Company, not in its individual capacity
but solely as owner trustee and Republic Airways Inc.
Lease
Agreement No.2 (N110HQ) dated 23 June 2017 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
Lease
Agreement No.3 (N110HQ) dated 31 December 2018 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
Lease
Agreement No.4 (N110HQ) dated 8 February 2019 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
|
|
MSN 17000173
|
|
Lease
Agreement [N111HQ] dated 28 June 2007 between Wells Fargo Delaware
Trust Company, not in its individual capacity but solely as owner
trustee and Republic Airways Inc. (formerly, Republic Airline,
Inc.)
Lease
Supplement No.1 [N111HQ] dated 28 June 2007 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
Participation
Agreement [N111HQ] dated 28 June 2007 between Wells Fargo Delaware
Trust Company, not in its individual capacity but solely as owner
trustee, Republic Airways Inc. and Metropolitan Life Insurance
Company.
Engine
Warranty Assignment Agreement [N111HQ] dated 28 June 2007 between
GE Engines Services, Inc. and Wells Fargo Delaware Trust Company,
not in its individual capacity but solely as owner trustee and
consented to by General Electric Company and GE Engine Services
Distribution, LLC.
Guaranty
dated 28 June 2007 between Republic Airways Holdings Inc., Wells
Fargo Delaware Trust Company, not in its individual capacity but
solely as owner trustee and Metropolitan Life Insurance
Company.
Tax
Indemnity Agreement [N111HQ] dated 28 June 2007 between Republic
Airways Inc. and Metropolitan Life Insurance Company.
Amendment
No.1 to Lease Agreement (N111HQ) dated 10 October 2016 between
Wells Fargo Delaware Trust Company, not in its individual capacity
but solely as owner trustee and Republic Airways Inc.
Lease
Agreement No.2 (N111HQ) dated 23 June 2017 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
Lease
Agreement No.3 (N111HQ) dated 31 December 2018 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
Lease
Agreement No.4 (N111HQ) dated 8 February 2019 between Wells Fargo
Delaware Trust Company, not in its individual capacity but solely
as owner trustee and Republic Airways Inc.
|
SCHEDULE D
FORM OF LIMITED LIABILITY AGREEMENT OF COMPANY
SCHEDULE E
TRUST DOCUMENTS
|
Republic Airways
|
|
MSN 17000168
|
|
Trust
Agreement [N109HQ] dated 25 May 2007 between Wells Fargo Delaware
Trust Company, not in its individual capacity but solely as owner
trustee and Metropolitan Life Insurance Company.
Assignment
and Assumption Agreement (N109HQ) dated 26 September 2007 between
Metropolitan Life Insurance Company and Metlife Capital, Limited
Partnership.
Amendment
No.1 to Trust Agreement [N109HQ] dated 26 September 2007 between
Wells Fargo Delaware Trust Company, not in its individual capacity
but solely as owner trustee and Metlife Capital, Limited
Partnership.
Assignment
and Assumption Agreement (N109HQ) dated 26 July 2017 between
Metlife Capital, Limited Partnership, AeroCentury Corp., Wells
Fargo Delaware Trust Company, not in its individual capacity but
solely as owner trustee and Republic Airways Inc.
Assignment
and Assumption Agreement (N109HQ) dated 31 December 2018 between
ACY E-175 LLC, AeroCentury Corp., Republic Airways Inc. and Wells
Fargo Delaware Trust Company, not in its individual capacity but
solely as owner trustee.
|
|
MSN 17000172
|
|
Trust
Agreement [N110HQ] dated 26 June 2007 between Metropolitan Life
Insurance Company and Wells Fargo Delaware Trust Company, not in
its individual capacity but solely as owner trustee.
Assignment
and Assumption Agreement (N110HQ) dated 26 September 2007 between
Metropolitan Life Insurance Company and Metlife Capital, Limited
Partnership.
Amendment
No.1 to Trust Agreement [N110HQ] dated 26 September 2007 between
Wells Fargo Delaware Trust Company, not in its individual capacity
but solely as owner trustee and Metlife Capital, Limited
Partnership.
Assignment
and Assumption Agreement (N110HQ) dated 23 June 2017 between
Metlife Capital, Limited Partnership, AeroCentury Corp., Wells
Fargo Delaware Trust Company, not in its individual capacity but
solely as owner trustee and Republic Airways Inc.
Assignment
and Assumption Agreement (N110HQ) dated 31 December 2018 between
ACY E-175 LLC, AeroCentury Corp., Republic Airways Inc. and Wells
Fargo Delaware Trust Company, not in its individual capacity but
solely as owner trustee.
|
|
MSN 17000173
|
|
Trust
Agreement [N111HQ] dated 26 June 2007 between Wells Fargo Delaware
Trust Company, not in its individual capacity but solely as owner
trustee and Metropolitan Life Insurance Company.
Assignment
and Assumption Agreement (N111HQ) dated 26 September 2007 between
Metropolitan Life Insurance Company and Metlife Capital, Limited
Partnership.
Amendment
No.1 to Trust Agreement [N111HQ] dated 26 September 2007 between
Wells Fargo Delaware Trust Company, not in its individual capacity
but solely as owner trustee and Metlife Capital, Limited
Partnership.
Assignment
and Assumption Agreement (N111HQ) dated 23 June 2017 between
Metlife Capital, Limited Partnership, AeroCentury Corp., Wells
Fargo Delaware Trust Company, not in its individual capacity but
solely as owner trustee and Republic Airways Inc.
Assignment
and Assumption Agreement (N111HQ) dated 31 December 2018 between
ACY E-175 LLC, AeroCentury Corp., Republic Airways Inc. and Wells
Fargo Delaware Trust Company, not in its individual capacity but
solely as owner trustee.
|
BORROWER PARENT TRANSFER AGREEMENT
dated
as of March 16, 2021 by
AEROCENTURY CORP.,
as
Prior Borrower Parent
DRAKE JET LEASING 10 LLC,
as New
Borrower Parent
ACY E-175 LLC,
as
Republic Borrower
NORDDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH,
as
Participant
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
as Swap
Counterparty
NORDDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH,
as
Agent
and
WILMINGTON TRUST COMPANY,
as
Security Trustee
Aircraft
Credit Facility
______________________________
Norddeutsche Landesbank Girozentrale, New York Branch
Mandated Lead Arranger
2.2
Consent to
Membership Interest Transfer 2
2.3
Release of the
Prior Borrower Parent 2
2.4
New Borrower Parent
Pledge Agreement 2
2.5
Amendment to Swap
Master Agreement 3
2.6
Amendments to the
Credit Agreement and the other Operative
Documents 3
2.7
Acknowledgment
Regarding Related Borrowers 3
Section
3.
Conditions
Precedent; Conditions Subsequent 3
Section
4.
Representations and
Warranties 5
Section
5.
Miscellaneous 7
5.2
Ratification;
Effectiveness 7
5.5
Successors and
Assigns 8
5.8
Governing Law;
Submission to Jurisdiction 8
5.9
Waiver of Jury
Trial 9
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SCHEDULE I
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Form of
Borrower Parent Pledge Agreement
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BORROWER PARENT TRANSFER AGREEMENT
THIS BORROWER PARENT TRANSFER AGREEMENT
is made as of March 16, 2021 (this “Agreement”) among AEROCENTURY
CORP., a corporation
incorporated under the laws of the State of Delaware (the
“Prior
Borrower Parent”),
DRAKE JET LEASING 10
LLC, a limited liability
company organized under the laws of the State of Delaware (the
“New Borrower
Parent”), ACY E-175
LLC, a limited liability company organized under the laws of
the State of Delaware (the “Republic Borrower”), NORDDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH, as a loan participant (in such capacity, and
together with its successors, assigns and transferees, each a
“Participant”
and, together, the “Participants”), NORDDEUTSCHE LANDESBANK GIROZENTRALE, as
swap counterparty (in such capacity, the “Swap Counterparty”), NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as loan
facility agent (in such capacity, the “Agent”), and WILMINGTON TRUST COMPANY, a Delaware
trust company, as security trustee (the “Security Trustee”).
WHEREAS, the Republic Borrower, the
Participant, the Agent and the Security Trustee, among others, have
previously entered into that certain Credit Agreement dated as of
February 6, 2019 (as amended, modified or supplemented from
time to time prior to the date hereof, the “Credit Agreement”);
WHEREAS, the Prior Borrower Parent and
the Security Trustee have previously entered into that certain
Membership Interest Pledge Agreement dated as of February 8,
2019 (as amended, modified or supplemented from time to time prior
to the date hereof, the “Existing Borrower Parent Pledge Agreement”)
with respect to, inter
alia, the Prior Borrower Parent’s ownership of 100% of
the Membership Interest (as defined in the Existing Borrower Parent
Pledge Agreement) in the Republic Borrower; and
WHEREAS, the Prior Borrower Parent
intends to transfer all of its right, title and interest to and in,
inter alia, the Membership
Interest to the New Borrower Parent (the “Membership Interest
Transfer”).
NOW THEREFORE, for good and valuable
consideration, the receipt of which has been duly received, the
parties hereto agree as follows:
Section
1. Definitions
1.1 Unless the context
otherwise requires, capitalized terms used herein (including the
recitals above) and not otherwise defined herein shall have the
meanings set forth in the Credit Agreement for all purposes of this
Agreement. The term “New
Agreements” shall mean this Agreement, the Servicing
Agreement, the Servicer Consent and the New Borrower Parent Pledge
Agreement.
Section
2. Agreements.
2.1 General. Pursuant to that
certain purchase agreement in respect of the Membership Interest
dated March 16, 2021 (the “Purchase Agreement”) between,
inter alios, the Prior
Borrower Parent and the New Borrower Parent, the Prior Borrower
Parent has agreed to sell, assign and transfer, and the New
Borrower Parent has agreed to purchase and assume, the Membership
Interest (as defined in the Existing Borrower Pledge Agreement).
This Agreement sets forth certain agreements among the parties
hereto in respect of the Membership Interest Transfer. For the
purposes of this Agreement, the releases, consents and agreements
contemplated by this Section 2 shall be effective upon the
satisfaction of all of the conditions precedent set forth in
Section 3 in accordance with the terms thereof (the
“Transfer
Date”).
2.2 Consent to Membership Interest
Transfer. Notwithstanding Section 5.4 of the Credit
Agreement, Sections 4(a) and 16 of the Existing Borrower Parent
Pledge Agreement or any other provision of the Operative Documents
to the contrary, each of the Security Trustee, the Agent the
Participant and Swap Counterparty consents to the Membership
Interest Transfer and the entry into the New Agreements on the
terms and conditions set forth herein.
2.3 Release of the Prior Borrower
Parent. On the Transfer Date:
(a) each of the
Participant and Swap Counterparty, the Agent and the Security
Trustee hereby (i) releases and discharges the Prior Borrower
Parent from all of its present and future liabilities, duties and
obligations owing to them under the Existing Borrower Parent Pledge
Agreement and the other Operative Documents (other than any
liabilities, duties and obligations that expressly survive the
termination of such documents) and (ii) agrees that they
will have no further rights or claims against the Prior Borrower
Parent thereunder (other than any rights or claims arising prior to
the Transfer Date and any rights or claims that expressly survive
the termination of such documents);
(b) the Security
Trustee hereby, for and on behalf of the Secured Parties,
(i) releases the Lien of the Existing Borrower Parent Pledge
Agreement and (ii) releases, discharges and, where applicable,
transfers or reassigns to the Prior Borrower Parent all of its
rights, titles and interest in and to the Pledged Collateral (as
defined in the Existing Borrower Parent Pledge Agreement) assigned
unto the Security Trustee under the Existing Borrower Parent Pledge
Agreement;
(c) each of the Prior
Borrower Parent and the Security Trustee is hereby authorized to
make such UCC filings as may be necessary to evidence the release
of the Pledged Collateral (as defined in the Existing Borrower
Parent Pledge Agreement). In connection therewith, the Security
Trustee (and the other parties hereto, if so requested) will, at
the New Borrower Parent’s reasonable cost and expense,
execute and deliver, or cause to be executed and delivered, such
documents as may be reasonably requested by the Prior Borrower
Parent or the New Borrower Parent to evidence such release (which
documents shall be provided to the Security Trustee by the Prior
Borrower Parent in execution form); and
(d) the Security
Trustee hereby consents to the revocation of all powers of attorney
granted to it by the Prior Borrower Parent under the Existing
Borrower Parent Pledge Agreement and such powers of attorney are
hereby revoked by the Prior Borrower Parent with immediate effect
from the Transfer Date.
2.4 New Borrower Parent Pledge
Agreement. The New Borrower Parent and the Security Trustee
hereby agree to enter into a membership interest pledge agreement
on the Transfer Date substantially in the form of Schedule I hereto
(the “New Borrower Parent
Pledge Agreement”).
2.5 Amendment to Swap Master
Agreement. On or promptly following the Transfer Date (but
in any case, within five Business Days following the Transfer
Date), the Swap Counterparty and the Republic Borrower shall enter
into an amendment to the Swap Master Agreement of form and
substance satisfactory to the Swap Counterparty.
2.6 Amendments to the Credit Agreement and
the other Operative Documents.
(a) As of the Transfer
Date, all references to the “Borrower Parent” or, with
respect to the Borrower Parent Pledge Agreement, the
“Pledgor”, in the Credit Agreement or the other
Operative Documents shall be construed wherever it appears therein
as if it referred to the New Borrower Parent in place of the Prior
Borrower Parent, except where such reference relates to an
obligation to be satisfied, or a representation or warranty that is
not continuing and was made, prior to the Transfer
Date.
(b) As of the Transfer
Date, all references to the “Remarketing Agent” in the
Credit Agreement or any other Operative Document shall be construed
wherever it appears therein as if it referred to Falko Regional
Aircraft Limited in place of the Prior Borrower Parent, except
where such reference relates to an obligation to be satisfied or a
representation or warranty that is not continuing and was made
prior to the Transfer Date.
(c) As of the Transfer
Date, all references to the Loan Operative Documents shall be
deemed to include (i) the Servicing Agreement and (ii) the Servicer
Consent, in each case as defined below.
2.7 Acknowledgment Regarding Related
Borrowers. Each of the parties hereto hereby acknowledges
that each of the 19002 Borrower, the 19003 Borrower and the Adria
Borrower is no longer party to the Credit Agreement, the Security
Agreement and the other Operative Documents and has previously been
released and discharged from all liabilities, duties, obligations,
rights and claims under such Operative Documents (other than any
liabilities, duties and obligations that expressly survived the
release of such Borrower from such documents), and the Liens
created under the Loan Operative Documents relating to Mortgaged
Property and Pledged Property relating to or granted by each such
Borrower have been previously released or will be released prior to
the Transfer Date and each of the parties hereto hereby acknowledge
that neither the New Borrower Parent nor Republic Borrower shall
have any liabilities, duties obligations, in relation thereto;
provided that, for
the avoidance of doubt, the Cash Collateral Account remains open
and subject to the Liens created under the Loan Operating
Documents.
Section
3. Conditions Precedent; Conditions
Subsequent.
3.1 Conditions Precedent. The
releases, consents and agreements contemplated by Section 2 of this
Agreement shall become effective upon receipt by the Participant,
the Swap Counterparty, the Agent and the Security Trustee of each
of the following conditions precedent, each of which shall be in
form and substance reasonably satisfactory to the Agent (or such
condition shall be waived by the Agent with the consent of the
Participant):
(a) a copy of this
Agreement, duly executed and delivered by each of the parties
hereto;
(b) a copy of the
Membership Interest Purchase Agreement (redacted as necessary to
remove commercially sensitive information) and each Transaction
Document (as defined in the Membership Interest Purchase Agreement
(redacted as necessary to remove commercially sensitive
information)), in each case duly executed by each of the parties
thereto;
(c) a copy of a
membership transfer power evidencing that the Membership Interest
has been transferred (or will upon the Transfer Date be
transferred) from the Prior Borrower Parent to the New Borrower
Parent;
(d) a copy of the New
Borrower Parent Pledge Agreement, duly executed and delivered by
the parties thereto, together with copies of the limited liability
company interest transfer form and any other certificates,
instruments or documents to be delivered in connection with the New
Borrower Parent Pledge Agreement, in each case duly executed and
delivered by the parties thereto;
(e) a copy of the
Servicing Agreement dated on or about the Transfer Date, among,
inter alios, Falko Regional
Aircraft Limited (the “Servicer”), the Republic Borrower
and the New Borrower Parent (the “Servicing Agreement”), duly
executed and delivered by the parties thereto;
(f) a copy of the
Servicer Notice and Acknowledgment dated on or about the Transfer
Date, from the Republic Borrower and the Security Trustee to the
Servicer, and acknowledged and agreed by, inter alios, the New Borrower Parent,
the Participant and the Agent (the “Servicer Consent”), duly executed
and delivered by the parties thereto;
(g) a copy of the
Security Agreement Supplement with respect to the Servicing
Agreement, duly executed and delivered by the Republic
Borrower;
(h) evidence that any
applicable filings and/or registrations in relation to the New
Borrower Parent Pledge Agreement have been made (or will be made
immediately following the Transfer Date) in all relevant
jurisdictions, and the New Borrower Parent hereby authorizes such
filings (including, without limitation, the filing of UCC-1
financing statements);
(i) each of the
Participant, the Swap Counterparty, the Agent and the Security
Trustee shall have received a legal opinion, in form and substance
satisfactory to it, from:
(i) Vedder Price P.C.,
as special New York counsel to the New Borrower Parent;
and
(ii) Morris
James LLP, as special Delaware counsel to the Republic Borrower and
the New Borrower Parent;
(j) a copy, duly
certified as a true copy by the Republic Borrower’s
authorized signatory, of (i) the constitutional documents,
(ii) the specimen signature of each authorized signatory for
the Republic Borrower, and (iii) other evidence authorizing
execution, delivery and performance by the Republic Borrower of
each New Agreement to which it is a party and each Transaction
Document (as defined in the Membership Interest Purchase Agreement)
to which it is a party;
(k) a copy, duly
certified as a true copy by the New Borrower Parent’s
authorized signatory, of (i) the constitutional documents,
(ii) resolutions of the board of directors approving the terms
of each New Agreement to which it is a party and naming the person
or persons authorized to sign each New Agreement to which it is a
party on behalf of the New Borrower Parent and any documents to be
delivered by it pursuant hereto contemporaneously herewith, and
(iii) the specimen signature of each person or persons
authorized by the resolution referred to above;
(l) a copy, duly
certified as a true copy by the Servicer’s authorized
signatory, of an authorization naming the person or persons
authorized to sign the Servicing Agreement and the Servicer Consent
on behalf of the Servicer and any documents to be delivered by it
pursuant hereto contemporaneously herewith, and the specimen
signature of each person or persons authorized by the authorization
referred to above;
(m) any documentation
and other information with respect to the Servicer, the Republic
Borrower and the New Borrower Parent required by the Participant,
the Swap Counterparty, the Agent and/or the Security Trustee under
any applicable “know your customer”, “customer
due diligence”, Anti-Corruption Laws, Anti-Money Laundering
Laws or other similar laws;
(n) each of the
representations and warranties contained in Section 4 shall be
true and accurate;
(o) no event shall have
occurred and be continuing which constitutes a Default or an Event
of Default;
(p) the Security
Trustee shall have received a duly executed letter of undertaking
from the insurance broker of Republic Airways Inc., in form and
substance reasonably satisfactory to the Security Trustee, the
Participant and the Swap Counterparty, together with a certificate
of insurance and/or reinsurance from such broker; and
(q) the Agent, the
Participant and the Security Trustee shall have received such other
documents and evidence with respect to the Servicer, the Republic
Borrower, the Prior Borrower Parent and the New Borrower Parent as
any of them or their counsel may reasonably request in order to
establish the consummation of the transactions contemplated by the
Membership Interest Transfer and the New Agreements, the taking of
all corporate proceedings in connection therewith, compliance with
the conditions herein set forth and compliance with any money
laundering informational requirements the Participant may
have.
3.2 Conditions Subsequent. Promptly
following the Transfer Date, the Servicer, the Republic Borrower
and/or the New Borrower Parent, as the case may be, shall provide
each of the Participant, the Swap Counterparty, the Agent and the
Security Trustee any additional documentation and other information
with respect to the Servicer, the Republic Borrower and the New
Borrower Parent required by the Participant, the Swap Counterparty,
the Agent and/or the Security Trustee under any applicable
“know your customer”, “customer due
diligence”, Anti-Corruption Laws, Anti-Money Laundering Laws
or other similar laws, to the extent such documentation or
information was not so provided prior to the Transfer
Date.
Section
4. Representations and
Warranties.
4.1 Each of the
Republic Borrower and the New Borrower Parent hereby represents and
warrants in respect of itself only that the following statements
are, on the date hereof, true and accurate:
(a) it is duly
organized under the laws of the State of Delaware and is validly
existing, and has full power and authority to conduct its business
as presently conducted, to own or hold under lease its assets, to
enter into and perform its obligations under each New Agreement to
which it is a party and to consummate the transactions contemplated
by the New Agreements;
(b) its organizational
documents permit it to sign and deliver, and perform its
obligations pursuant to the transactions contemplated by each New
Agreement to which it is a party and all necessary authorizations,
approvals, consents, licenses, permits and orders of and
registrations with any Governmental Authority have been
obtained;
(c) each New Agreement
to which it is a party constitutes legal, valid and binding
obligations of it, enforceable in accordance with the terms of such
New Agreement;
(d) the execution and
entry into each New Agreement to which it is a party and
performance of its obligations thereunder do not contravene any
applicable law or any agreement or other instrument to which it is
a party;
(e) to the best of its
knowledge, no event has occurred that constitutes a contravention
of, or default under, any agreement by which it or any of its
assets is bound or affected, and that could reasonably be expected
to have a material adverse effect on its operations or its ability
to observe or perform its obligations under each New Agreement to
which it is a party;
(f) no litigation,
arbitration or administrative proceeding that could reasonably be
expected to have a material adverse effect on its operations or its
ability to observe or perform its obligations under each New
Agreement to which it is a party is presently in progress or,
pending or threatened against it or any of its assets;
(g) all information
furnished to Participant by and on behalf of it in connection with
the Membership Interest Transfer and the transaction contemplated
by the New Agreements is complete, true and correct in all material
respects;
(h) it, under
applicable law, is subject to private commercial law and suit, and
neither it nor its properties or assets have any right of immunity
from suit or execution on the grounds of sovereignty in Delaware or
any other jurisdiction or on any other grounds;
(i) each of it and its
Affiliates, and to the best of their knowledge its manager,
directors, officers, employees, associated parties and persons, as
applicable, acting on behalf of it are in compliance in all
respects with (i) all applicable laws and regulations to which
it or any of its assets may be subject relating to corruption and
bribery, and (ii) other laws to which it or any of its assets
may be subject if failure so to comply would result in a material
adverse effect on its operations or its ability to observe or
perform its obligations under each New Agreement to which it is a
party;
(j) neither it nor any
of its Affiliates nor, to the best of its knowledge, any director,
officer, employee, associated party or person acting on behalf of
it or any Affiliate has engaged in any activity which would breach
Anti-Corruption Laws or any similar applicable laws;
(k) to the best of the
its knowledge and belief, no actions or investigations by any
Governmental Authority are ongoing or threatened against it, or any
of its manager, directors, officers, employee, associated party or
person, as applicable, acting on their behalf in relation to a
breach of Anti-Corruption Laws or any similar applicable
laws;
(l) it and its
Affiliates have not engaged and will not have engaged, as the case
may be, in any transaction, investment, undertaking or activity in
violation of the Anti-Money Laundering Laws of any jurisdiction in
each case as they may be applicable to it or any of its Affiliates,
and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
it or any of its Affiliates is with respect to the Anti-Money
Laundering Laws, pending or, to its knowledge, threatened;
and
(m) neither it nor, to
its knowledge, any of its directors, employees or
officers:
(i) is a Sanctioned
Person;
(ii) is
owned or controlled by, or acting directly or indirectly on behalf
of or for the benefit of, a Sanctioned Person;
(iii) owns
or controls a Sanctioned Person; or
(iv) has
violated or is in violation of any Sanctions (including, but
without limitation, the U.S. sanctions administered by OFAC, any
other U.S. government sanctions, export or procurement laws or any
other sanctions or other such restrictions on business dealing
imposed by the European Union, the United Kingdom or the United
Nations) or is or has engaged in any conduct that would provide a
basis for it to be designated as a subject of
Sanctions.
4.2 The Prior Borrower
Parent hereby represents and warrants that the following statements
are, on the date hereof, true and accurate:
(a) it is duly
incorporated under the laws of the State of Delaware and is validly
existing, and has full corporate power and authority to conduct its
business as presently conducted, to own or hold under lease its
assets, to enter into and perform its obligations under this
Agreement and to consummate the transactions contemplated by this
Agreement;
(b) its organizational
documents permit it to sign and deliver, and perform its
obligations pursuant to the transactions contemplated by this
Agreement and all necessary authorizations, approvals, consents,
licenses, permits and orders of and registrations with any
Governmental Authority have been obtained;
(c) this Agreement
constitutes legal, valid and binding obligations of it, enforceable
in accordance with the terms of this Agreement;
(d) the execution and
entry into this Agreement and performance of its obligations
hereunder do not contravene any applicable law or any agreement or
other instrument to which it is a party;
(e) to the best of its
knowledge, no event has occurred that constitutes a contravention
of, or default under, any agreement by which it or any of its
assets is bound or affected, and that could reasonably be expected
to have a material adverse effect on its operations or its ability
to observe or perform its obligations under this
Agreement;
(f) no litigation,
arbitration or administrative proceeding that could reasonably be
expected to have a material adverse effect on its operations or its
ability to observe or perform its obligations under this Agreement
is presently in progress or, pending or threatened against it or
any of its assets;
(g) all information
furnished by and on behalf of it in connection with the Membership
Interest Transfer and the transaction contemplated by this
Agreement is complete, true and correct in all material respects;
and
(h) it, under
applicable law, is subject to private commercial law and suit, and
neither it nor its properties or assets have any right of immunity
from suit or execution on the grounds of sovereignty in Delaware or
any other jurisdiction or on any other grounds.
Section
5. Miscellaneous.
5.1 Amendments, Etc. No term or
provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by
the party or other Person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the
terms hereof shall be effective only in the specific instance and
for the specific purpose given.
5.2 Ratification; Effectiveness.
Except as expressly amended hereby, all provisions of the Credit
Agreement and the other Operative Documents are hereby ratified and
affirmed and shall continue in full force and effect in accordance
with their terms. This Agreement shall take effect as of the
Transfer Date.
5.3 Further Assurance. Each of the
parties hereto shall, at the cost of the New Borrower Parent, do
and perform such other and further acts and sign, seal, execute,
acknowledge, deliver, file, and register and de-register and
release any additional documents, instruments, deeds, certificates,
consents and assurances and any and all such other instruments as
may be required by law or reasonably requested by the other in
order to establish, maintain, protect or preserve the rights and
remedies of the other hereunder and to carry out and effect the
intent and purpose of this Agreement.
5.4 Costs. The New Borrower Parent
will pay or reimburse the Participant, the Swap Counterparty, the
Agent and the Security Trustee for all documented out-of-pocket
costs and expenses of the Participant, the Agent, the Swap
Counterparty and the Security Trustee reasonably incurred by them
(including, without limitation, the reasonable fees and
out-of-pocket expenses of Vedder Price P.C., special New York
counsel to the Participants, the Swap Counterparty and the Agent
and of Morris James LLP, special counsel to the Security Trustee),
in connection with the negotiation, preparation, execution and
delivery of this Agreement and the other New Agreements and the
consummation of the transactions contemplated hereunder and
thereunder. The New Borrower Parent shall pay or reimburse for such
costs and expenses promptly following receipt of invoices with
respect thereto.
5.5 Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns.
5.6 Captions. The headings of the
various Sections herein and in the table of contents hereto
are for convenience of reference only and shall not define or limit
any of the terms or provisions hereof.
5.7 Counterparts. This Agreement
may be executed by the parties in separate counterparts and any
single counterpart or set of counterparts executed and delivered by
the parties shall constitute one and the same Agreement and a full
original Agreement for all purposes. The words
“execution,” “signed,”
“signature,” and words of like import in this Agreement
shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the
case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
5.8 Governing Law; Submission to
Jurisdiction. THIS AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW
OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW. THIS AGREEMENT IS BEING DELIVERED IN THE
STATE OF NEW YORK. Each party hereto hereby submits to the
nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York state court
sitting in New York City for the purpose of all legal proceedings
arising out of or relating to this Agreement, the other Operative
Documents or the transactions contemplated hereby and thereby. Each
party hereto irrevocably waives, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to
the laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
5.9 Waiver of Jury Trial. THE
REPUBLIC BORROWER, THE PRIOR BORROWER PARENT, THE NEW BORROWER
PARENT, THE PARTICIPANT, THE SWAP COUNTERPARTY, THE AGENT AND THE
SECURITY TRUSTEE HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS AGREEMENT OR THE OTHER OPERATIVE DOCUMENTS OR THE RELATIONSHIP
ESTABLISHED HEREUNDER OR THEREUNDER.
[Signature
pages follow]
[Borrower
Parent Transfer Agreement]
IN WITNESS WHEREOF, the parties hereto
have caused this Borrower Parent Transfer Agreement to be executed
by their duly authorized officers or attorneys in fact all as of
the day and year first written above.
|
|
AEROCENTURY CORP., as Prior Borrower
Parent
By:
Name:
Title:
|
[Borrower
Parent Transfer Agreement]
|
|
DRAKE JET LEASING 10 LLC, as New
Borrower Parent
By:
Name:
Title:
|
[Borrower
Parent Transfer Agreement]
|
|
ACY E-175 LLC, as Republic
Borrower
By:
Drake Jet Leasing 10 LLC, its Manager
By:
Name:
Title:
|
[Borrower
Parent Transfer Agreement]
|
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as Participant
By:
Name:
Title:
By:
Name:
Title:
|
|
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as Agent
By:
Name:
Title:
By:
Name:
Title:
|
|
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE, as
Swap Counterparty
By:
Name:
Title:
By:
Name:
Title:
|
[Borrower
Parent Transfer Agreement]
|
|
WILMINGTON TRUST COMPANY, as Security
Trustee
By:
Name:
Title:
|
Schedule I
to the
Borrower Parent Transfer Agreement
FORM OF BORROWER PARENT PLEDGE AGREEMENT
MEMBERSHIP INTEREST PLEDGE AGREEMENT
dated
as of March __, 2021
between
DRAKE JET LEASING 10 LLC
as
Pledgor
and
WILMINGTON TRUST COMPANY
as
Security Trustee
_______________________________________
Borrower
Parent Pledge Agreement
________________________________________
Section
3.
Representations and
Warranties of the Pledgor 2
Section
4.
Covenants of the
Pledgor 3
Section
5.
Voting Rights,
Distributions etc 5
Section
6.
Delivery of Pledged
Collateral 6
Section
7.
Remedies upon
Default 6
Section
9.
Private
Sales 8
Section
10. Application of Proceeds of Sale and Cash and
Securities 9
Section
11.Limitation on Duties Regarding Preservation of Pledged
Collateral 9
Section
12. Further Assurances 9
Section
13. Notices 9
Section
14. No Waiver 9
Section
15. GOVERNING LAW 9
Section
16. Successors and Assigns 10
Section
17. Waivers; Amendments 10
Section
18. Termination 10
Section
19. Severability 10
Section
20. Headings 10
Section
21. Counterparts 10
Section
22. Entire Agreement 10
Section
23. WAIVER OF JURY TRIAL 11
Section
24. Non-Recourse Obligations 11
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EXHIBIT A
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Form of
Equity Power
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THIS MEMBERSHIP INTEREST PLEDGE
AGREEMENT dated as of March __, 2021 (this
“Agreement”) is
between DRAKE JET LEASING 10
LLC, a Delaware
limited liability company, as pledgor (the “Pledgor”) and WILMINGTON TRUST
COMPANY, as security trustee (the “Security Trustee”).
W I T N E S S E T H:
WHEREAS, the Pledgor is the sole member
and manager of ACY E-175 LLC, a Delaware limited liability company
(the “Company”)
pursuant to that certain Amended and Restated Operating Agreement,
dated as of March __, 2021 (as it may
be modified, supplemented or amended from time to time, the
“LLC Agreement”)
and owns 100% of the Membership Interest (as defined below) in the
Company, as evidenced by Certificate No. 2 dated March __, 2021
(the “Certificate”) issued by the
Company to the Pledgor;
WHEREAS, the Company has entered
into a Credit Agreement, dated as
of February 7, 2019, among, inter alios, the Company, as a borrower, the participants
party thereto (the “Participants”), Norddeutsche Landesbank Girozentrale,
New York Branch, as agent, Norddeutsche Landesbank Girozentrale, as
swap counterparty, and the Security Trustee (as it may be modified,
supplemented or amended from time to time, the
“Credit
Agreement”) pursuant to
which the Participants agreed to make certain loans available to
refinance the Aircraft;
WHEREAS, the Company has entered into a
Security Agreement, dated as of February 8, 2019, among,
inter alios, the Company,
as a mortgagor, and the Security Trustee (as it may be modified,
supplemented or amended from time to time, the “Mortgage”);
WHEREAS, the Company and the Pledgor
have entered into the Borrower Parent Transfer Agreement, dated as
of March __, 2021, among, inter
alios, the Company, the Pledgor and the Security Trustee (as
it may be modified, supplemented or amended from time to time, the
“Borrower Parent Transfer
Agreement”); and
WHEREAS, it is a condition precedent to
the occurrence of the Transfer Date (as defined in the Borrower
Parent Transfer Agreement), that the Pledgor grant to the Security
Trustee a security interest in the Membership Interest (as defined
below).
NOW THEREFORE, in consideration of the
premises and the mutual covenants contained herein, the Pledgor
hereby covenants and agrees with the Security Trustee as
follows:
Section
1. Definitions. Unless the context
otherwise requires, capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Credit
Agreement.
Section
2. Pledge. As security for the
payment and performance in full of all of the Secured Obligations
(as defined in the Security Agreement), the Pledgor hereby pledges,
hypothecates, assigns, transfers, sets over, delivers and grants to
the Security Trustee a first priority Lien in all right, title and
interest of the Pledgor which presently exist or hereafter arise
in, to and under the following:
(i) the limited
liability company interest in the Company held by the Pledgor and
the rights of the Pledgor as the sole member of the Company (the
“Membership
Interest”),
(ii) all
dividends, interest, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of
or in exchange for any of or all the Membership Interest and all
other options or rights of any nature whatsoever which may be
issued or granted by the Company to the Pledgor in respect of the
Membership Interest and the books and records of the Company
evidencing record ownership and registration of the interests
pledged hereunder,
(iii) all
certificates or other instruments or documents representing any of
the foregoing, including the Certificate,
(iv) all
rights and privileges of the Pledgor with respect to the Membership
Interest and the other property referred to in clauses (i) through
(iii) above, and
(v) all proceeds of any
of the foregoing and any property of any character whatsoever into
which any of the foregoing may be converted (all items referred to
in clauses (i) through (v) being hereinafter collectively
referred to as the “Pledged
Collateral”).
(a) For the avoidance
of doubt, Excluded Payments (as defined in the Security Agreement)
and any supplemental rent, maintenance reserves and security
deposits payable to the Company under the relevant Lease (received
as distributions or otherwise) shall not be Pledged
Collateral.
TO HAVE AND TO HOLD the Pledged
Collateral, together with all rights, title, interests, powers,
privileges and preferences pertaining or incidental thereto, unto
the Security Trustee, its successors and assigns permitted by the
terms of the Credit Agreement; subject, however, to the terms,
covenants and conditions hereinafter set forth.
Section
3. Representations and Warranties of the
Pledgor. The Pledgor hereby represents and warrants as of
the date hereof:
(a) it is a Delaware
limited liability company duly organized and validly existing under
the laws of the jurisdiction of its formation and has the requisite
power and authority to enter into this Agreement and to carry out
the transactions contemplated hereby;
(b) (i) it has
duly authorized, executed and delivered this Agreement and
(ii) this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms,
except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, receivership, reorganization, moratorium or
other similar laws affecting creditors’ rights generally and
by application of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or
at law);
(c) the execution,
delivery and performance by the Pledgor of this Agreement is not in
violation of the LLC Agreement or any indenture, mortgage, deed of
trust or other instrument or agreement to which it is a party or by
which it is bound or to which any of its property or assets may be
subject;
(d) neither the
execution and delivery by the Pledgor of this Agreement nor the
consummation by it of any of the transactions contemplated hereby
requires the consent or approval of, the giving of notice to, or
the registration or filing with, or the taking of any other action
in respect of, any agency or authority, except for the filing of
Uniform Commercial Code financing statements (and continuations
thereof) in respect of the security interests created hereby in the
State of Delaware;
(e) the Pledgor is the
record owner of the Pledged Collateral, free and clear of any and
all Liens or claims of any other Person, except for the Lien
granted hereunder (and the rights and remedies of the Security
Trustee related to such Lien);
(f) the Membership
Interest has been duly authorized and validly issued;
(g) the Certificate is
accurate and the Membership Interest described therein constitutes
the entire Membership Interest of the Pledgor at the date
hereof;
(h) it has legal
authority to pledge the Pledged Collateral in the manner hereby
done or contemplated;
(i) the Pledgor, as
manager and sole member of the Company, has not taken any action or
commenced any legal proceedings nor (to the best of its knowledge
and belief) has the Company taken any or have any been threatened
against the Company for its winding up, dissolution, administration
or reorganization or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar officer
of it or any of all of its assets;
(j) other than the
delivery of the Certificate to the Security Trustee evidencing the
Pledged Collateral and the filing of a UCC-1 financing statement in
respect of this Agreement, it is not necessary in order to ensure
the validity, enforceability or admissibility in evidence in
proceedings of this Pledge Agreement in New York or Delaware or any
other relevant jurisdiction that it or any other document be filed
or registered with any authority in such jurisdiction or elsewhere
or that any tax be paid in respect thereof, and the Lien granted
pursuant to this Agreement will constitute a valid, perfected first
priority Lien on the Pledged Collateral.
Section
4. Covenants of the Pledgor. The
Pledgor covenants as follows for so long as any Secured Obligations
remain outstanding and/or unperformed (other than any contingent
liabilities that continue past the termination of the Security
Agreement and the other Loan Operative Documents):
(a) except as
contemplated hereby and by the Security Agreement, the Pledgor will
not make any sale, assignment, pledge, mortgage, hypothecation or
transfer of the Pledged Collateral or the ownership interests of
the Company and, except for the Lien granted hereby, the Pledgor
will be the sole legal owner of the Pledged Collateral, free and
clear of any and all Liens other than the Liens granted in favor of
the Security Trustee;
(b) as manager and sole
member of the Company, it will not cause the Company to issue any
further limited liability company interests of any class or
description or other securities in addition to or in substitution
for the Membership Interest in existence on the Closing Date; it
will hold in trust and will pledge hereunder, immediately upon its
acquisition (direct or indirect) thereof, all property (other than
Excluded Payments, any supplemental rent, maintenance reserves or
security deposits payable under the relevant Lease and other
property explicitly permitted to be received and retained by the
Company under the Credit Agreement and the other Loan Operative
Documents) or additional limited liability company interest of any
class or description or other securities of the
Company;
(c) at any time and
from time to time, at no expense to the Security Trustee, it will
promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary, or that the
Security Trustee may reasonably request, in order to perfect and
protect any Lien granted or purported to be granted hereby or to
enable the Security Trustee to exercise and enforce its rights and
remedies hereunder;
(d) as manager and sole
member of the Company, it shall not authorize or, to the extent
within its power or control, consent to the appointment of a
receiver, trustee or liquidator of the Company or of a substantial
part of the Company’s property, or admit in writing submitted
in connection with judicial or other similar procedures the
Company’s inability to pay its debts generally as they come
due, or make a general assignment for the benefit of creditors or
permit any creditor to exercise a contractual right to assume the
operations or financial management of the Company;
(e) as manager and sole
member of the Company, it shall not authorize the Company to file a
voluntary petition in bankruptcy or a voluntary petition or an
answer seeking reorganization in a proceeding under any bankruptcy
laws (as now or hereafter in effect) or an answer admitting the
material allegations of a petition filed against the Company in any
such proceedings, or authorize the Company by voluntary petition,
answer or consent to or seek relief under the provisions of any
other now existing or future bankruptcy, insolvency or other
similar law providing for the reorganization or winding-up of
corporations, or providing for an agreement, composition, extension
or adjustment with the Company’s creditors or otherwise for
the relief of distressed debtors;
(f) it shall not
commence or join with any other Person in commencing any case,
proceeding or action described in the preceding paragraph or seek
an order, judgment or decree appointing a receiver, trustee or
liquidator of the Company of all or substantial part of its
property, or sequestrating of all or any substantial part of the
property of the Company or otherwise file a petition against the
Company in a proceeding under any bankruptcy, insolvency or other
similar laws as now or hereafter in effect;
(g) as manager and sole
member of the Company, it shall not authorize the Company to incur
any indebtedness other than as provided in the Operative
Documents;
(h) as manager and sole
member of the Company, it shall not authorize the Company to engage
in any business other than as contemplated by the Operative
Documents;
(i) it shall not,
unless (i) it has given at least 20 days’ prior written
notice to such effect to the Security Trustee and (ii) all action
reasonably necessary to protect and perfect the Lien granted or
purported to be granted hereby with respect to the Pledged
Collateral, shall have been taken, either (A) change its name,
identity or structure or reorganize or (B) reincorporate under the
laws of another jurisdiction;
(j) if it receives
distributions from the Company that were made with funds that the
Company was not entitled to receive under the Security Agreement
and the other Loan Operative Documents, it shall hold such funds in
trust for the Security Trustee and promptly deposit such funds in
the applicable Collateral Account on behalf of the
Company;
(k) it shall defend the
Security Trustee’s right, title and Lien in and to the
Pledged Collateral against the claims and demands of all Persons;
and
(l) it will not amend,
repeal or modify the LLC Agreement of the Company without the prior
written consent of the Security Trustee (not to be unreasonably
withheld, delayed or conditioned).
Section
5. Voting Rights, Distributions
etc. So long as no Event of Default has occurred and is
continuing, the Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Membership
Interest, or any part thereof, for any purpose not inconsistent
with the terms of this Agreement or the other Loan Operative
Documents; provided
however, that the Pledgor shall not be entitled to exercise any
voting and/or consensual rights and powers with respect to the
following without the prior written consent of the Security
Trustee:
(i) the winding up,
dissolution, liquidation or reorganization of the Company or the
composition or readjustment of its debts;
(ii) the
merger or consolidation of the Company with any other
Person;
(iii) the
sale of all or substantially all the assets of the
Company;
(iv) any
amendment to or modification of the LLC Agreement;
(v) except as otherwise
provided in the Operative Documents, the incurrence of any
indebtedness or the creation of any Lien by the
Company;
(vi) except
as otherwise provided in the Operative Documents, the making by the
Company of a general assignment for the benefit of
creditors;
(vii) the
commencement by the Company of a voluntary case or other proceeding
seeking liquidation, reorganization, winding up or other relief
with respect to the Company or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of the Company or of all or any
substantial part of its property;
(viii) failing
to controvert in a timely and appropriate manner, or acquiescence
in writing to, any petition filed against the Company in an
involuntary case under applicable bankruptcy or similar law or in
any other action or proceeding against it under any law relating to
bankruptcy, insolvency, reorganization, winding up or composition
or readjustment of its debts;
(ix) other
than with respect to payments permitted or required by the
Operative Documents or to be made by the Security Trustee, the
payment of dividends or other distributions other than in cash in
respect of the Membership Interest or the repurchase or redemption
of the Membership Interest; and
(x) the taking of any
action necessary for the purpose of effecting any actions specified
in the foregoing clauses (i) through (ix);
(m) The Pledgor shall
execute and deliver, or cause to be executed and delivered, to the
Security Trustee, as appropriate, all such proxies and other
instruments as the Security Trustee may request for the purpose of
enabling the Security Trustee to exercise all rights and privileges
in respect of the Membership Interest and/or the voting and/or
consensual rights and powers which the Security Trustee is entitled
to exercise pursuant to this Section 5.
(n) At any time when an
Event of Default has occurred and is continuing, all rights of the
Pledgor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant to
Section 5(a) shall cease and all such rights shall thereupon
become vested in the Security Trustee, without further act who
shall thereupon have the sole right to exercise such voting and
other consensual rights and remedies
(o) Upon any sale or
other disposition of any part of the Pledged Collateral by the
Security Trustee pursuant to Section 7 hereof, all of the
voting and consensual rights, privileges and powers referred to in
the preceding sentence pertaining to such part shall in any event
become vested in the Person to whom such sale or disposition is
made, which Person shall thereafter have the sole and exclusive
right to exercise such voting and consensual rights, privileges and
powers.
Section
6. Delivery of Pledged Collateral.
The Pledgor agrees to deliver or cause to be delivered promptly to
the Security Trustee any and all other Pledged Collateral, and any
and all certificates or other instruments or documents representing
any of the Pledged Collateral, including the Certificate, which
shall be in or come into the Pledgor’s possession during the
term of this Agreement. The Pledgor agrees to deliver to the
Security Trustee on or prior to the Closing Date a duly executed
limited liability company equity power form in blank in the form of
Exhibit A hereto.
Section
7. Remedies upon Default. If an
Event of Default shall have occurred and be continuing, the
Security Trustee may exercise all rights of a secured party under
the Uniform Commercial Code, as enacted in any applicable
jurisdiction, with respect to the Pledged Collateral and, in
addition, the Security Trustee may, without being required to give
any notice except as herein provided or as may be required by
applicable law, sell, assign, transfer, endorse and deliver the
whole or, from time to time, any part of the Pledged Collateral at
a public or private sale or at any broker’s board or on any
securities exchange, for cash, upon credit or for other property,
for immediate or future delivery, and for such price or prices and
on such terms as the Security Trustee in its reasonable discretion
shall deem appropriate. The Security Trustee shall be authorized at
any sale to restrict the prospective bidders or purchasers to
Persons who will represent and agree that they are purchasing the
Pledged Collateral for their own account in compliance with the
Securities Act of 1933, as amended (the “Securities Act”). Upon
consummation of any sale, the Security Trustee shall have the right
to assign, transfer, endorse and deliver to the purchaser or
purchasers thereof the Pledged Collateral sold and all of the
voting and consensual rights and powers granted and reserved to the
Security Trustee pursuant hereto shall thereupon become vested in
such purchaser or purchasers, subject to any reservations or
qualifications imposed by the Security Trustee. Each purchaser at
any sale shall hold the property sold absolutely free from any
claim or right on the part of the Pledgor, and the Pledgor hereby
waives and releases (to the extent permitted by law) all rights of
redemption, stay, appraisal, reclamation and turnover which the
Pledgor now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted. The
Security Trustee shall give the Pledgor (with a copy to the
Company) ten days’ written notice (which the Pledgor agrees
is reasonable notification within the meaning of Section 9-612
of the Uniform Commercial Code, as enacted in any applicable
jurisdiction) of the Security Trustee’s intention to attempt
to sell any of the Pledged Collateral. Such notice, in the case of
a public sale, shall state the time and place for such sale, and,
in the case of a sale at a broker’s board or on a securities
exchange, shall identify the board or exchange at which such sale
is to be made and the day on which the Pledged Collateral, or a
portion thereof, will first be offered for sale. Any public sale of
any of the Pledged Collateral shall be held at such time or times
within ordinary business hours and at such place or places as the
Security Trustee may state in the notice or publication (if any) of
such sale. At any sale, the Pledged Collateral, or any portion
thereof to be sold, may be sold as an entirety or in separate
parcels, as the Security Trustee may (in its sole and absolute
discretion) determine. The Security Trustee shall not be obligated
to sell any of the Pledged Collateral if it shall determine not to
do so, regardless of the fact that notice of a sale of such Pledged
Collateral may have been given. The Security Trustee may, without
notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the
time and place fixed for sale, and such sale may, without further
notice, occur at the time and place identified in such
announcement. In case all or any part of the Pledged Collateral is
sold on credit or for future delivery, the Pledged Collateral so
sold may be retained by the Security Trustee until the sale price
is paid by the purchaser or purchasers thereof, but the Security
Trustee shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Pledged Collateral
so sold and, in case of any such failure, such Pledged Collateral
may be sold again upon ten days’ notice (which the Pledgor
agrees is reasonable notification within the meaning of
Section 9-612 of the Uniform Commercial Code, as enacted in
any applicable jurisdiction). At any sale made pursuant to this
Agreement, to the extent permitted by applicable law, the Security
Trustee may bid for or purchase, free from any right of redemption,
stay, appraisal, reclamation or turnover on the part of the Pledgor
(all said rights being also hereby waived and released to the
extent permitted by law), any Pledged Collateral offered for sale
and may make payment on account thereof by using the amount of
Secured Obligations outstanding to it from the Pledgor as a credit
against the purchase price, and the Security Trustee may, upon
compliance with the terms of sale, hold, retain and dispose of the
Pledged Collateral sold without further accountability to the
Pledgor therefor. For purposes hereof, a written agreement to
purchase all or any part of the Pledged Collateral shall be treated
as a sale thereof and the Security Trustee shall be free to carry
out such sale pursuant to such agreement, and the Pledgor shall not
be entitled to the return of any Pledged Collateral subject
thereto, notwithstanding the fact that after the Security Trustee
shall have entered into such agreement all Events of Default shall
have been remedied. As an alternative to exercising the power of
sale herein conferred upon it, the Security Trustee may proceed by
suit or suits at law or in equity to foreclose this Agreement and
sell the Pledged Collateral or any portion thereof pursuant to a
judgment or decree of a court having competent jurisdiction and/or
pursuant to a proceeding of a court-appointed
receiver.
The
Pledgor hereby constitutes and appoints the Security Trustee the
attorney-in-fact of the Pledgor for the purpose of carrying out
after the occurrence and during the continuance of an Event of
Default, the provisions of this Agreement and taking any action and
executing any instrument which the Security Trustee may deem
necessary or reasonably advisable to accomplish the purposes
hereof, which appointment is granted as security for the
performance of the Pledgor’s obligations hereunder and for
valuable consideration, and is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, the
Security Trustee shall have the right, after the occurrence and
during the continuance of an Event of Default, with full power of
substitution either in the Security Trustee’s name or in the
name of the Pledgor, to settle, compromise, prosecute or defend any
action, claim or proceeding with respect to the Pledged Collateral
and shall have the right to sell, assign, endorse, pledge, transfer
and make any agreement respecting, or otherwise deal with, the
same.
Section
8. Cooperation. The Pledgor agrees
that, upon the occurrence and during the continuance of an Event of
Default, if for any reason the Security Trustee desires to sell any
of the Pledged Collateral at a sale, it will, at any time and from
time to time, upon the written request of the Security Trustee, use
commercially reasonable efforts to cause the Company to take such
action and prepare, distribute and/or file such documents as are
required for the Security Trustee to permit the sale of such
Pledged Collateral.
Section
9. Private Sales. The Pledgor
recognizes that the Security Trustee may be unable to effect a
public sale of any or all the Pledged Collateral, by reason of
certain prohibitions contained in the Securities Act and applicable
state securities laws or otherwise, and may be compelled to resort
to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and
not with a view to the distribution or resale thereof. The Pledgor
acknowledges and agrees that any such private sale may result in
prices and other terms less favorable than if such sale were a
public sale. The Security Trustee shall be under no obligation to
delay a sale of any of the Pledged Collateral for the period of
time necessary to permit the Company to register such securities
for public sale under the Securities Act, or under applicable state
securities laws, even if the Company would agree to do so; nor
shall the Company be at any time obligated to register the
Membership Interest for a public sale.
(a) The Pledgor further
agrees to use commercially reasonable efforts to do or cause to be
done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Pledged Collateral pursuant to
this Section 8 valid and binding and in compliance with
applicable laws. The Pledgor further agrees that a breach of any of
the covenants contained in this Section 8 will cause
irreparable injury to the Security Trustee, that the Security
Trustee has no adequate remedy at law in respect of such breach
and, as a consequence, that each and every covenant contained in
this Section 8 shall be specifically enforceable against the
Pledgor, and the Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has
occurred and is continuing.
Section
10. Application of Proceeds of Sale and
Cash and Securities. The proceeds of any sale of or
realization upon the whole or any part of the Pledged Collateral
and cash retained by the Security Trustee pursuant to this
Agreement shall be applied by the Security Trustee in accordance
with Section 3.03 of the Mortgage.
Section
11. Limitation on Duties Regarding
Preservation of Pledged Collateral. Neither the Security
Trustee nor any director, officer, employee or counsel of the
Security Trustee shall be liable for any action taken or omitted to
be taken by it or them relative to any of the Pledged Collateral
except for its or their own gross negligence or willful
misconduct.
Section
12. Further Assurances. The Pledgor
agrees that at no expense to the Security Trustee, (a) it will
duly execute and deliver (to the Security Trustee or otherwise) or
cause to be duly executed and delivered (to the Security Trustee or
otherwise) and will file or record such notices, financing
statements or other documents as may be necessary to enable the
perfection of the Lien of the Security Trustee hereunder, or as the
Security Trustee may reasonably request, such instruments to be in
form and substance reasonably satisfactory to the Security Trustee,
and (b) it will do or cause to be done such further acts and
things and execute and deliver (to the Security Trustee or
otherwise) such additional conveyances, assignments, agreements and
instruments, as the Security Trustee may at any time reasonably
request in connection with the administration and enforcement of
this Agreement or relative to the Pledged Collateral or any part
thereof or in order to assure and confirm unto the Security Trustee
its rights, powers and remedies hereunder, including, without
limitation, the protection and perfection of the Security
Trustee’s Lien in the Pledged Collateral or any part
thereof.
Section
13. Notices. All notices and other
communications shall be in writing and shall be given or made by
fax, mail or personal delivery and faxed, mailed or delivered to
the intended recipient at the address specified in Schedule 1 to
the Credit Agreement or at such other address as shall be
designated by the Pledgor or the Security Trustee in a notice to
the other party hereto. All such communications shall be deemed to
have been duly given when transmitted by fax (provided such
transmission by fax is in legible form and is accompanied by or
generates a substantially simultaneous confirmation of
transmission), or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
For the purposes of the Pledgor, notices shall be delivered in
accordance with this Section 13 to:
Drake
Jet Leasing 10 LLC
c/o
Maples Fiduciary Services (Delaware) Inc.
Suite
302, 4001 Kennett Pike
Wilmington,
DE 19807
USA
Attn:
Fiduciary Services
Email:
XXXXXXXXXXx
with a
copy to:
Falko
Regional Aircraft Limited
1
Bishop Square
St.
Albans Rd. West
Hatfield
AL10 9NE
Attn:
Sarah Dichlian
Email:XXXXXXX
/ xxxxxxxxxxx
Section
14. No Waiver. No failure on the
part of the Security Trustee or any of its agents to exercise, and
no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Security
Trustee or any of its agents of any right, power or remedy
hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
Section
15. GOVERNING LAW. THIS AGREEMENT
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTION 5-1401 AND
SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW. THIS
AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK.
Section
16. Successors and Assigns. This
Agreement and the terms, covenants and conditions hereof shall be
binding upon and inure to the benefit of the parties hereto and all
holders of the Secured Obligations secured hereby and their
respective successors and permitted assigns, except that the
Pledgor shall not be permitted to assign or otherwise transfer this
Agreement or any rights or interests herein or in the Pledged
Collateral or any part thereof, or otherwise to pledge, encumber or
grant any option with respect to the Pledged Collateral or any part
thereof. The Pledgor shall not be permitted to delegate any of its
duties or obligations hereunder. The Security Trustee may assign
this Agreement or any or all of its rights hereunder in accordance
with the provisions of the Operative Documents.
Section
17. Waivers; Amendments. No term or
provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by
the parties hereto; and any waiver of the terms hereof shall be
effective only in the specific instance and for the specific
purpose given.
Section
18. Termination.
(a) Upon payment in
full of the Secured Obligations, this Agreement shall terminate and
the Security Trustee, at the request of the Pledgor, will execute
and deliver to the Pledgor, at no cost to the Security Trustee, a
proper instrument or instruments acknowledging the satisfaction and
termination of this Agreement and will duly assign, transfer and
deliver to the Pledgor all of the rights and moneys at the time
held by the Security Trustee under this Agreement and will execute
any other instrument reasonably requested by the Pledgor in
connection with the foregoing.
(b) Upon (or at any
time after) payment in full of the principal amount of and interest
on and all other amounts due under all Loan Certificates related to
all of the Republic Aircraft and provided that no Default or Event
of Default shall have occurred and be continuing, the Pledgor may
direct the Security Trustee to execute and deliver to or as
directed in writing by the Pledgor an appropriate instrument
releasing the Pledged Collateral from the Lien of this Agreement
and the Security Trustee shall execute and deliver such instrument
as aforesaid.
Section
19. Severability. If any provision
hereof is invalid and unenforceable in any jurisdiction, then, to
the fullest extent permitted by law, (i) the other provisions
hereof shall remain in full force and effect in such jurisdiction
and (ii) the invalidity or unenforceability of any provision
hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction. To the
extent permitted by applicable law, the Pledgor hereby waives any
provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
Section
20. Headings. Section headings
used herein are for convenience only and are not to affect the
construction of or be taken into consideration in interpreting this
Agreement.
Section
21. Counterparts. This Agreement
may be executed in separate counterparts each of which when so
executed and delivered shall be an exchangeable original, but all
such counterparts shall together constitute but one and the same
agreement.
Section
22. Entire Agreement. This
Agreement together with the Operative Documents constitutes, on and
as of the date hereof, the entire agreement of the Pledgor and the
Security Trustee with respect to the subject matter hereof, and all
prior or contemporaneous understandings or agreements, whether
written or oral, between the Security Trustee and the Pledgor with
respect to such subject matter are hereby superseded in their
entirety.
Section
23. WAIVER OF JURY TRIAL.
EACH PARTY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY CIVIL ACTION
ARISING UNDER THIS AGREEMENT OR ANY OTHER OPERATIVE
DOCUMENTS.
Section
24. Non-Recourse
Obligations.
(a) In recognition of
the Pledgor granting the security referred to in Section 2,
the Security Trustee hereby agrees that, notwithstanding the
provisions of this Agreement or any Loan Operative Document to the
contrary, any and all liability of the Pledgor that is created
hereunder shall, in the absence of fraud, gross negligence or
willful misconduct in performing its obligations under this
Agreement, be limited to the Pledged Collateral. Except as
specified above, the Pledgor shall not be personally liable for any
shortfall that may arise as a result thereof. The provisions of
this Section 24(a) shall only limit the personal liability of
the Pledgor for the discharge of its obligations as specified above
and shall not (i) limit or restrict in any way the accrual of
interest on any such unpaid amount, or (ii) derogate from or
otherwise limit the right of recovery, realization or application
by the Security Trustee, the Agent, the Swap Counterparty and each
Participant under or pursuant to any of the Loan Operative
Documents on anything assigned, mortgaged, charged, pledged or
secured (by way of security) to or for the benefit of the Security
Trustee, the Agent, the Swap Counterparty and each Participant
under or pursuant to any of the Loan Operative
Documents.
(b) The Security
Trustee hereby acknowledges and agrees that the Pledgor’s
obligations under this Agreement and the other Loan Operative
Documents are solely the corporate obligations of the Pledgor and
that none of the Security Trustee, the Agent, the Swap Counterparty
or the Participants shall have any recourse against any of the
directors, shareholders, officers or employees of the Pledgor for
any claims, losses, damages, liabilities, indemnities or other
obligations of the Pledgor under this Agreement and the other Loan
Operative Documents.
* *
*
[Borrower
Parent Pledge Agreement]
IN WITNESS WHEREOF, each of the parties
hereto has caused this Membership Interest Pledge Agreement to be
duly executed and delivered by its proper and duly authorized
officers as of the day and year first above written.
|
|
DRAKE JET LEASING 10 LLC, as
Pledgor
By: Name: Title:
|
[Borrower
Parent Pledge Agreement]
|
|
WILMINGTON TRUST
COMPANY, as Security Trustee
By:
Name:
Title:
|
[Borrower
Parent Pledge Agreement]
|
Acknowledged
and Agreed:
ACY E-175 LLC
By: Drake Jet Leasing 10 LLC, its manager
By:
Name:
Title:
|
|
EXHIBIT A
FORM OF EQUITY POWER
FOR
VALUE RECEIVED, the undersigned, Drake Jet Leasing 10 LLC, a
Delaware limited liability company (“Pledgor”), does hereby sell,
assign and transfer to __________________________________* all of
its Equity Interests (as hereinafter defined) represented by
Certificate No. 2 in ACY E-175, a Delaware limited liability
company (“Issuer”), standing in the name of
Pledgor on the books of said Issuer. Pledgor does hereby
irrevocably constitute and appoint
________________________________*, as attorney, to transfer the
Equity Interests in said Issuer with full power of substitution in
the premises. The term “Equity Interest” means the
membership interest of or in a limited liability company of
whatever nature, type, series or class, whether voting or
nonvoting, certificated or uncertificated, common or preferred, and
all rights and privileges incident thereto.
Dated:
_________________*
|
|
DRAKE JET LEASING 10 LLC
By:
Name:
Title:
|
*To
Remain Blank - Not Completed at Closing
