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EXHIBIT 1.01
DEALER MANAGER AGREEMENT
March __, 1997
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Ladies and Gentlemen:
AeroMax, Inc., a Delaware corporation (the "Company"), proposes to issue
(the "Offer") an aggregate of up to ________ shares of common stock, par value
$0.001 per share, of the Company ("Common Stock"), to the investors in the
limited partnerships listed on Schedule I of this Agreement (collectively,
"Partnerships" and individually, "Partnership"), in connection with the
proposed merger of the Partnerships with and into the Company. The aggregate
shares of Common Stock to be issued in connection with the Offer are
collectively referred to herein as the "Shares." CMA Capital Group, Inc.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, are the general partners of each of the
Partnerships (collectively, the "General Partner"). JetFleet Management Corp.
(the "Sponsor") is the founder and sole shareholder of the Company. The
limited partners (and their permitted assigns) and the general partners of the
Partnerships are collectively referred to herein as the "Partners." The Offer
will be made upon the terms and subject to the conditions set forth in the
Prospectus/Consent Solicitation Statement and Supplements (as defined in
Section 1 hereof) and the consent card to be distributed therewith (the
"Consent Card").
If all conditions to the merger of the Partnerships into the Company (as
set forth in the Prospectus/Consent Solicitation Statement) are either
satisfied or waived, then the Offer will be effected with such Partnerships by
merging such Partnerships with and into the Company, upon the terms and subject
to the conditions set forth in Merger Agreement dated of even date herewith by
and among each of the Partnerships that duly accepts the Offer with the Company
(the "Participating Partnerships") and the Company (such agreement, as the same
may be amended, is referred to herein as the "Merger Agreement"). The Offer
and the Merger, including, without limitation, the solicitation of consents in
connection therewith (the "Consents"), are herein collectively referred to as
the "Consolidation." This Agreement and the Merger Agreement are collectively
referred to herein as the "Operative Agreements."
The following sets forth the agreement among the General Partner,
Partnerships, the Sponsor, the Company and you as Dealer Manager.
1. PROSPECTUS/CONSENT SOLICITATION STATEMENT AND REGISTRATION
STATEMENT. The Company, with the assistance of the Sponsor, has prepared and
filed with the Securities and Exchange Commission (the "Commission"), a
Registration Statement on Form S-4 (No. 33-
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_____) for the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of the Shares to be issued in connection with the Merger in
the manner described in the Prospectus/Consent Solicitation Statement. The
Company has filed with the Commission such amendments thereto, if any, as have
been required to the date hereof. Such registration statement (as amended) at
the time it becomes effective is hereinafter called the "Registration
Statement", except that if the Company files a post-effective amendment to the
registration statement, then the term "Registration Statement" shall, from and
after the declaration of the effectiveness of such post-effective amendment
thereto, refer to the registration statement as amended by such post-effective
amendment. The Registration Statement includes a prospectus/consent
solicitation statement and prospectus/consent solicitation statement
supplements, one relating to each of the Partnerships, which prospectus/consent
solicitation statement, together with the relevant such supplement, serves as
the prospectus and consent solicitation statement for each of the Partnerships,
and has been prepared and filed by the Company on behalf of each of the
Partnerships pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Securities Act. The prospectus/consent solicitation
statement and prospectus/consent solicitation statement supplements on file
with the Commission as they may be amended at the time the Registration
Statement becomes effective are hereinafter called the "Prospectus/Consent
Solicitation Statement" and the "Supplements," respectively, except that, if
any revised Prospectus/Consent Solicitation Statement or Supplement shall be
provided to any of the Partners by the Company, any Partnership or the Sponsor
in connection with the Consolidation which differs from the Prospectus/Consent
Solicitation Statement or such Supplement(s) on file at the Commission at the
time the Registration Statement becomes effective (whether or not such revised
Prospectus/Consent Solicitation Statement or Supplement is required to be filed
by the Company pursuant to the rules and regulations of the Commission under
the Securities Act (the "Securities Act Regulations"), or by the Company on
behalf of any of the Partnerships under the rules and regulations of the
Commission under the Exchange Act (the "Exchange Act Regulations"), then the
terms "Prospectus/Consent Solicitation Statement" or "Supplement," as the case
may be, shall refer to such revised prospectus/consent solicitation statement
or prospectus/consent solicitation statement supplement from and after the time
it is first provided to any of the Partners of a Partnership.
2. THE OFFER. The Company will, as soon as practicable after the
Registration Statement shall have become effective under the Securities Act,
commence the Offer by mailing copies of the Prospectus/Consent Solicitation
Statement, the relevant Supplements, the Consent Card and other Solicitation
materials to the Partners (the time of commencement of such mailing being
referred to herein as the "Time of Mailing"); provided, however, that no
mailing will be made unless the covenants set forth in Section 10 hereof to be
satisfied at the Time of Mailing shall have been satisfied prior to or
concurrently with the commencement of such mailing. The Offer shall expire at
the time specified as the "Approval Date" in the Prospectus/Consent
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Solicitation Statement (which Approval Date shall be at least 60 days following
the date that the mailing is completed), unless extended by the Company with
your consent, which consent shall not be unreasonably withheld, as also
provided in the Prospectus/Consent Solicitation Statement.
The materials to be distributed to each of the Partners will
consist of a letter relating to the Offer accompanied by copies of the
Prospectus/Consent Solicitation Statement, the Supplement relating to the
Partnership of which such Partner is an investor, a Consent Card and other
soliciting materials, including a question and answer supplement, the use of
which will be subject to approval by counsel to the Company and by your
counsel. The documents to be distributed as aforesaid, any other documents
relating to the Offer or the Consolidation distributed by or on behalf of the
Company, the Sponsor or the Partnerships and any public announcements or
advertisements relating to the Offer or the Consolidation, shall be
collectively approved by the Company, counsel to the Company, the Sponsor, you
and your counsel, and such materials, as such materials may be amended,
modified or supplemented from time to time, are hereinafter referred to
collectively as the "Offer Materials."
3. APPOINTMENT AND DUTIES AS A DEALER MANAGER: ENGAGEMENT LETTER.
(a) On the basis of the representations, warranties and
covenants herein contained, but subject to the terms and conditions herein set
forth, you are hereby appointed to act as Dealer Manager in connection with the
Consolidation. On the basis of the representations, warranties and covenants
herein contained, but subject to the terms and conditions herein set forth,
you, as Dealer Manager, agree to perform those services in connection with the
Consolidation as are customarily performed by investment banking concerns in
connection with mergers.
(b) The obligations of the Dealer Manager hereunder shall
commence as of the Time of Mailing and, except as otherwise provided herein,
shall continue until the earlier of (i) the Approval Date or (ii) the close of
business on ________, 1997 (the "Expiration Time"), unless extended by the
agreement of the Sponsor and you to a date not later than ________, 1997.
(c) You shall not be liable to the General Partner, any
Partnership, any Partner, the Sponsor, the Company or any other person for any
act or omission on the part of any broker, commercial bank or trust company,
and you shall not be liable for your own acts or omissions in performing your
obligations hereunder except to the extent any loss, claim, damage, liability
or expense is found in a final judgment by a court of competent jurisdiction to
have resulted from your bad faith, gross negligence, recklessness or willful
misconduct. You, as Dealer Manager shall be deemed to act as the agent of the
others of you or any broker, commercial bank or trust company or of any of the
Partnerships, the Partners, the Sponsor or the Company or any other third
party.
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(d) The Partnerships, the Sponsor and the Company hereby
authorize you to communicate with ▇. ▇. ▇▇▇▇ & Co., Inc., in its capacity as
Information Agent (the "Information Agent"), with respect to matters relating
to the Consolidation.
(e) The Partnerships, the Sponsor and the Company further
authorize you to use the Offer Materials in connection with the Offer and for
such period of time as any offer Materials are required by law to be delivered
in connection therewith.
4. PROSPECTUS/CONSENT SOLICITATION STATEMENT MATERIALS. Each
Partnership, as to such Partnership, the Company and the Sponsor agree to
provide or cause to be provided to you for your use in connection with the
Consolidation a list showing (i) the names and addresses of the brokers that
assisted in the sale of the interests or units in each Partnership's public
offering ("Partnership Interests") and the number of Partnership Interests of
each Partnership sold through each such broker and (ii) the names and addresses
of, and the numbers of Partnership Interests held by (and the name of the
broker through which such Partnership Interests were purchased), the Partners
as of a recent date, and to use their best efforts to obtain other information
concerning such brokers and the Partners reasonably requested by you in
connection with the Consolidation and to cause you to be advised daily as soon
thereafter as reasonably practicable prior to the Approval Date as to any
transfers of record of Partnership Interests of each Partnership. Dealer
Manager, on behalf of itself and its affiliates, authorizes the Sponsor and its
affiliates to supply the information described in clauses (i) and (ii) above to
the Dealer Manager, the Information Agent or the Transfer Agent. Each
Partnership, as to the Prospectus/Consent Solicitation Statement and its own
Supplement and other related solicitation materials filed with the Commission,
the Company and the Sponsor agree to furnish or cause to be furnished to you at
their expense as many copies as you may reasonably request of the
Prospectus/Consent Solicitation Statement, the Supplements, the Consent Cards
and all other Offer Materials. Each Partnership, the Sponsor and the Company
authorize you to use the Offer Materials in connection with the Consolidation,
and you agree that you shall not use any material in connection with any
communications with brokers or Partners of any Partnership other than the Offer
Materials and such other materials, if any, as such Partnership, the Company,
counsel to the Company and the Sponsor may approve. You shall have no
obligation to cause copies of the Offer Materials to be transmitted generally
to broker-dealers or to the Partners.
Each Partnership, the Sponsor and the Company agree that, prior
to using or permitting the use of any material in connection with the
Consolidation required to be filed with the Commission and prior to filing any
such material with the Commission or with any other person, they shall submit
copies of such material to you and you shall have reasonable opportunity to
object thereto, and each Partnership, the Sponsor and the Company further agree
that no such materials shall be used or filed to which you reasonably object.
If any Partnership, the Sponsor or the Company uses or permits the use of any
material in connection with the
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Consolidation or files any such material with the Commission or with any other
person (i) which has not been submitted to you for your comments or (ii) which
has been so submitted and with respect to which you have reasonably objected,
such materials shall nevertheless be deemed Offer Materials and shall be
subject to the provisions of Section 11 hereof.
5. FEES AND REIMBURSEMENT OF EXPENSES.
(a) For its services hereunder, the Partnerships, the Sponsor
and the Company, jointly and severally, agree to pay Dealer Manager as dealer
manager fee equal to $80,000 ("Dealer Manager Fee"). In addition, the Company
shall issue to Dealer Manager a warrant to purchase 35,000 shares of Common
Stock of the Company at a purchase price of $1.00 per share, which warrant
shall be in substantially the form attached hereto a Exhibit A.
The Partnerships, the Sponsor and the Company, jointly and
severally, agree to pay all (i) expenses of preparing the Offer Materials, (ii)
appraisal, financial advisory and accounting fees and related expenses incurred
in connection with the Consolidation, (iii) expenses incident to the
qualification or registration of the Shares under securities laws in accordance
with the terms of this Agreement, including filing fees of the Commission, the
National Association of Securities Dealers, Inc. and applicable state
governmental agencies and the fees and expenses of counsel in connection
therewith and in connection with the preparation of a Blue Sky memorandum if
necessary, (iii) charges for printing of the Offer Materials, (iv) travel and
entertainment expenses of any roadshow or other meetings related to marketing
the Consolidation as reasonably approved by a Sponsor, (v) other reasonable
out-of-pocket expenses incurred by you (other than any expense that may be
deemed Solicitation Expenses as described below) in connection with your
services pursuant to this Agreement or and (vi) other expenses incurred or
authorized by any Partnership, the Sponsor, or the Company, in connection with
the Consolidation (collectively, with the Dealer Manager Fees, the "Transaction
Expenses").
Notwithstanding the foregoing, (i) in the event the
Consolidation is consummated, but the merger of a Partnership is not approved
by the requisite vote of the Partners of such Partnership, then the Sponsor
shall solely bear and be responsible for all Transaction Expenses payable with
respect to that portion of the Transaction Expenses attributable to such
Partnership on the basis of its respective Exchange Value, and (ii) in the
event the Consolidation is not consummated with respect to any of the
Partnerships, then the Sponsor shall solely bear and be responsible for a
percentage of the Transaction Expenses allocable to each Nonparticipating
Partnership (on the basis of its respective Exchange Value) equal to the
percentage of votes to reject the Consolidation of each such Partnership and
each Nonparticipating Partnership shall solely bear and be responsible for a
percentage of the Transaction Expenses allocable to such Partnership (on the
basis of its respective Exchange Value) equal to the percentage of votes to
accept the Consolidation of such Partnership.
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(b) The Partnerships, the Sponsor and the Company, jointly and
severally, agree to pay all (i) expenses of mailing the Offer Materials, (ii)
fees and expenses of the Information Agent in connection with the Consolidation
and (iii) any direct marketing expenses such as telephone calls, broker-dealer
fact sheets, legal and other expenses related to the solicitation as well as
reimbursements of costs incurred by brokers and banks in forwarding the Offer
materials to Partners (collectively, "Solicitation Expenses").
Notwithstanding the foregoing, (i) if the Consolidation is
consummated with 100% Partnership Participation, all Solicitation Expenses will
be payable by the Company and (ii) in the event the Consolidation is not
consummated with respect to a Partnership, then the Company shall solely bear
and be responsible for the Solicitation Expenses for such Partnership.
(c) The Partnerships, the Sponsor and the Company, jointly and
severally, also agree to reimburse you promptly for your reasonable
out-of-pocket expenses incurred in connection with any litigation (subject to
Sections 11 and 20 hereof, other than litigation commenced by any Partnership,
the Sponsor or the Company against you), administrative proceeding,
investigation, inquiry, hearing or other formal or informal proceeding to which
you may be called upon to give evidence, produce documents or take any other
action arising out of your acting as Dealer Manager or otherwise.
Payment to you in reimbursement of your expenses (including
Solicitation Expenses and Transaction Expenses (other than the Dealer Manager
Fees) shall be made promptly upon your request submitted from time to time. If
so requested, you will provide a monthly status report of your expenses
including the fees and disbursements of your legal counsel. If this Agreement
shall have been terminated pursuant to Sections 3(b), 13 or 18, the
reimbursement for expenses (including Solicitation Expenses and Transaction
Expenses (other than the Dealer Manager Fees)) incurred by you through the date
of such withdrawal or termination shall be paid to you as soon as practicable
after the date of such withdrawal or termination. Payment of the Dealer
Manager Fees shall be made on the Closing Date (as defined in Section 7
hereof).
The obligation of the Company, the Partnerships and the
Sponsor, as the case may be, to reimburse your expenses (including Transaction
Expenses (other than the Dealer Manager Fees)) shall survive the expiration or
termination of this Agreement and any cancellation or abandonment of the
Consolidation prior to consummation of the Consolidation. Reimbursement of
your expenses (including Transaction Expenses) shall be due and payable at your
option in immediately available funds or by certified or official bank check in
New York City Clearing House funds.
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6. STATUS OF SOLICITATION. The Partnerships, the Company or the
Sponsor shall advise you daily as to the number of Partnership Interests with
respect to which Consents have been submitted pursuant to the
Prospectus/Consent Solicitation Statement and, upon request, the names and
addresses of the registered owners thereof. Dealer Manager, on behalf of
itself and its affiliates, authorizes the Sponsor and its affiliates to supply
the investor and broker-dealer information described in clauses (i) and (ii) of
the first paragraph of Section 4 hereof to the Information Agent or the
Transfer Agent.
7. REPRESENTATIONS AND WARRANTIES CONCERNING THE PARTNERSHIPS.
Each Partnership (as to itself), the Sponsor and the Company hereby jointly and
severally represents and warrants to you, as of the date hereof and as of the
effective date of the Merger (such latter date being hereinafter referred to as
the "Closing Date"), and agrees with you that, with respect to each such
Partnership:
(a) Such Partnership has been duly formed and is validly
existing in good standing as a limited partnership in good standing under the
laws of the Sate of California with full partnership owner and authority to
own, lease and operate its properties and to conduct its business as described
in its partnership agreement and the Prospectus/Consent Solicitation Statement.
The certificate of limited partnership of such Partnership as filed with the
Secretary of State of the State of California includes the information required
to be set forth therein by the California Revised Limited Partnership Act (the
"Act"), and all of the statements contained in such certificate of limited
partnership are true and correct in all material respects. Such Partnership is
and as of the Closing Date will be duly qualified or registered as a foreign
limited partnership or otherwise qualified as a limited partnership in each
jurisdiction in which such qualification or registration is required or
necessary, whether by reason of the ownership or leasing of its property or the
conduct of its business, except where the failure to so qualify or register
would not subject it to any material liability or disability and would not
subject any of its Partners to any material liability or disability.
(b) Such Partnership has duly taken all necessary partnership
action to authorize the Consolidation (other than the required approval of its
Partners as described in the Prospectus/Consent Solicitation Statement and
Supplement relating to such Partnership), and the execution, delivery and
performance of this Agreement, and the Merger Agreement, and such Partnership
has duly taken or will duly take all necessary partnership action to authorize
the Offer Materials and any amendments thereto. Each of this Agreement, and
the Merger Agreement has been duly executed and delivered by, and is a valid
and binding agreement of, such Partnership, enforceable in accordance with its
respective terms, subject to bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights and except as may be limited by
judicial discretion in applying principles of equity (regardless of whether
such agreements are considered in a proceeding in equity or law).
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(c) The Consolidation, and the execution, delivery and
performance of this Agreement and the Merger Agreement, do not and will not
violate any law, regulation, order, award, judgment, determination, writ,
injunction or decree applicable to such partnership or its property or assets,
except for such violations that would not, either singly or in the aggregate,
have a material adverse effect on the condition (financial or otherwise) or on
the operations, earnings, business affairs or business prospects of such
Partnership.
(d) The Consolidation, subject to the receipt of Partnership
approval as described in the Prospectus/Consent Solicitation Statement and the
Supplement relating to such Partnership, and the execution, delivery and
performance of this Agreement and the Merger Agreement, do not and will not (i)
conflict with or violate the partnership agreement or certificate of limited
partnership of such Partnership or (ii) conflict with or result in a breach of
any of the terms or provisions of, or constitute a default (with or without due
notice and/or lapse of time) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of such Partnership
pursuant to, any indenture, loan agreement or other agreement, instrument or
contract affecting such Partnership or any of its property or assets or to
which such Partnership is a party or by which such Partnership or any of its
property or assets is bound, except for such conflicts, violations, defaults,
liens, charges or encumbrances that would not, either singly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise) or on the operations, earnings, business affairs or business
prospects of such Partnership.
(e) On behalf of such Partnership, the Company has filed the
Prospectus/Consent Solicitation Statement and Supplement relating to such
Partnership with the Commission in definitive form, including any schedules and
exhibits required to be filed in connection therewith, and has filed or will
promptly file as required any and all necessary amendments thereto. A correct
and complete copy of such Prospectus/Consent Solicitation Statement, Supplement
and any amendments thereto has been or will be furnished to you promptly upon
the filing thereof.
(f) The Prospectus/Consent Solicitation Statement (and all
documents incorporated therein by reference), the Supplement for such
Partnership and the other Offer Materials for such Partnership filed with the
Commission or distributed to Partners of such Partnership including any
schedules and exhibits required to be filed in connection therewith, comply and
will comply, at the dates of such filing and distribution (unless the Offer
Materials include a Prospectus/Consent Solicitation Statement or Supplement
which has been provided to the Partners of a Partnership by the Company, any of
the Partnerships or the Sponsor in connection with the Consolidation which
differs from the Prospectus/Consent Solicitation Statement or Supplement on
file at the Commission at the time the Registration Statement becomes
effective, in which case such date with respect to such Prospectus/Consent
Solicitation Statement or Supplement shall be the date it is first provide to
such Partners) and at the Closing
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Date, with the provisions of the Securities Act, the Securities Act
Regulations, the Exchange Act and the Exchange Act Regulations; and, when the
Registration Statement or any amendment thereto becomes effective, none of the
Registration Statement (including, without limitation, the Prospectus/Consent
Solicitation Statement and the Supplement relating to such Partnership), the
documents incorporated by reference and all amendments thereto contains or will
contain any untrue statement of a material fact or omits or will omit to state
a material fact required to be stated therein or necessary to make the
statement made therein, in light of the circumstances under which they were
made, not misleading; and none of the Offer Materials contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. The properties, operations, business and indebtedness, if any, of
the Partnership conform in all material respects to the descriptions thereof in
the Prospectus/Consent Solicitation Statement and the Supplement relating to
such Partnership.
(g) The accountants who certified the financial statements of
such Partnership and supporting schedules included in the Registration
Statement, the Prospectus/Consent Solicitation Statement and the Supplement
relating to such partnership are independent public accountants as required by
the Securities Act, the Securities Act Regulations, the Exchange Act and the
Exchange Act Regulations.
(h) The financial statements of such Partnership included in
the Registration Statement, the Prospectus/Consent Solicitation Statement and
the Supplement relating to such Partnership present fairly the financial
position of such Partnership as at the dates indicated and the results of its
operations for the periods specified, and, except as otherwise stated therein,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; the supporting
schedules included in the Registration Statement, the Prospectus/Consent
Solicitation Statement and the Supplement relating to such Partnership present
fairly the information required go be stated therein; the selected financial
data included or incorporated by reference in the Registration Statement, the
Prospectus/Consent Solicitation Statement and the Supplement present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included or incorporated by reference
in the Registration Statement, the Prospectus/Consent Solicitation Statement
and the Supplement; the pro forma financial information included in the
Registration Statement, the Prospectus/Consent Solicitation Statement and the
Supplement presents fairly the information shown therein and has been prepared
in accordance with the Commission's rules and guidelines with respect to pro
forma financial statements, has been properly compiled on the pro forma basis
described therein, and, in the opinion of such Partnership, the assumptions
used in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions or circumstances referred to
therein.
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(i) Since the respective dates as of which information is given
in the Registration Statement, the Prospectus/Consent Solicitation Statement
and the Supplement relating to such Partnership, except as otherwise stated
therein or contemplated thereby, (i) there has been no material adverse change
in the condition, financial or otherwise, or in the operations, earnings,
business affairs or business prospects of such Partnership, whether or not
arising in the ordinary course of business, (ii) there have been no
transactions entered into by such Partnership which are material with respect
to such Partnership, and (iii) there has been no distribution of any kind
declared, paid or made by such Partnership on any of its Partners Interests or
otherwise to any of its Partners, other than the quarterly distributions in the
ordinary course of business of such Partnership.
(j) The Consolidation, and the execution, delivery and
performance of this Agreement and the Merger Agreement by such Partnership,
comply and will comply with all applicable laws and regulations, and no
consent, license, authorization, approval of, or filing with, any governmental
authority or agency or any third party by or with respect to such partnership
is required in connection with the consummation by such Partnership of the
Consolidation, other than (i) any consent, approval or filing as may be
required under state securities laws, (ii) filings evidencing the consummation
of the Merger and (iii) as described in the Prospectus/Consent Solicitation
Statement and Supplement for such Partnership.
(k) Such Partnership is not an "investment company," as that
term is defined in the Investment Company Act of 1940, as amended (the "1940
Act"), and is not subject to regulation under the 1940 Act.
(l) Such Partnership is not currently in violation, and at the
Closing Date will not be in violation, of its partnership agreement or
certificate of limited partnership or in default in the performance or
observance of nay obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which such partnership is a party or by which it may be bound, or to which
any of the property or assets of such Partnership is subject, except for any
such defaults which would not, either singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise) or on the
operations, earnings, business affairs or business prospects of such
Partnership.
(m) Except as otherwise disclosed in the Prospectus/Consent
Solicitation Statement or the Supplement relating to such Partnership: (i) such
Partnership has good and marketable title to all assets (or a valid first lien
as to mortgaged properties) described in the Prospectus/Consent Solicitation
Statement or such Supplement as being owned (or mortgaged) by such Partnership
or as reflected in the most recent balance sheet of such Partnership contained
in the Prospectus/Consent Solicitation Statement or such Supplement; (ii) all
liens, charges, encumbrances, claims, or restrictions on or affecting the
properties and assets of such Partnership
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which are required to be disclosed in the Prospectus/Consent Solicitation
Statement or such Supplement are disclosed therein; (iii) the equipment leases,
if any, relating to each of such properties are in full force and effect and
will be transferred to the Company by the Partnership by operation of the
Merger.
(n) Such Partnership is currently in compliance, and at the
Closing Date will be in compliance, with all applicable laws and regulations,
except for any laws or regulations the violation of which would not, either
singly or in the aggregate, have a material adverse effect on the condition
(financial or otherwise) or on the operations, earnings, business affairs or
business prospects of such Partnership.
(o) To the knowledge of such Partnership and the Sponsor, there
is no action, suit or proceeding before or by any court or governmental agency
or body, domestic or foreign, now pending or threatened against or affecting
such Partnership or any of its properties, which is required to be disclosed in
the Prospectus/Consent Solicitation Statement or Supplement relating to such
Partnership (other than as disclosed therein), or which might, either singly or
in the aggregate, result in any material adverse change in the condition
(financial or otherwise) or in the operations, earnings, business affairs or
business prospects of such Partnership, or which might, either singly or in the
aggregate, materially and adversely affect the property or assets of such
Partnership or which might, either singly or in the aggregate, materially and
adversely affect the Consolidation; all pending legal or governmental
proceedings to which such Partnership is a party or of which any of its
property or assets is the subject which are not described in the
Prospectus/Consent Solicitation Statement or Supplement relating to such
Partnership, including ordinary routine litigation incidental to the business,
are, considered in the aggregate, not material; and there are no contracts or
documents of such Partnership required to be described in the
Prospectus/Consent Solicitation Statement or supplement relating to such
Partnership that are not described as so required.
(p) Such Partnership possesses such certificates, licenses,
authorities or permits issued by the appropriate state or federal regulatory
agencies or bodies necessary to conduct the business now operated by it, and
such partnership has not received any notice of proceedings relating to the
revocation or modification of any such certificate, license, authority or
permit which would, either singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, materially and adversely affect the
condition (financial or otherwise) or the operations, earnings, business
affairs or business prospects of such Partnership.
(q) In connection with the Consolidation, such Partnership has
complied and will comply in all material respects with the Securities Act, the
Securities Act Regulations, the Exchange Act and the Exchange Act Regulations.
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(r) No restraining order has been issued or proceedings,
litigation or investigation initiated or, to the best knowledge of such
Partnership, threatened, with respect to the Consolidation or the execution,
delivery and performance of this Agreement or the Merger Agreement by or before
the Commission, or any other regulatory, administrative, governmental or public
body or authority or any court other than as described in the
Prospectus/Consent Solicitation Statement and other than the receipt by the
Sponsor of requests for investor lists from several parties.
(s) Any certificate signed by or on behalf of any such
Partnership or either Sponsor and delivered to you or your counsel shall be
deemed a representation and warranty by such partnership or such Sponsor,
respectively, to you as to the matters covered thereby.
9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SPONSOR.
The Company and the Sponsor hereby jointly and severally represent and warrant
to you, as of the date hereof (except as set forth below) and as of the Closing
Date, and agrees with you that:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California and, immediately after the effective time of the Consolidation, will
have corporate power and authority to own, lease and operate the properties
currently owned, leased and operated by the Participating Partnerships and to
conduct the business currently conducted by the Participating Partnerships as
described in the Prospectus/Consent Solicitation Statement and the Supplements.
As of the Closing Date, the Company will be duly qualified as a foreign
corporation to transact business and will be in good standing in each
jurisdiction in which such qualification will be required after the effective
date of the Consolidation, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition (financial or
otherwise) or on the operations, earnings, business affairs or business
prospects of the Company. The Company does not and will not as of the Closing
Date have any subsidiaries or hold any capital stock or ownership interest in
any other entity.
(b) The Company has duly taken all necessary corporate action
to authorize the Consolidation, the issuance of the Shares, and the execution,
delivery and performance of each of this Agreement and the Merger Agreement,
and it has duly taken or will duly take prior to the Closing Date all necessary
corporate action to authorize the Offer materials and all amendments thereto.
Each of this Agreement and the Merger Agreement has been duly executed and
delivered by, and is a valid and binding agreement of, the Company enforceable
in accordance with its respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights and except
as may be limited by judicial discretion in applying principles of equity
(regardless of whether such agreements are considered in a proceeding in equity
or at law).
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(c) The Company has authorized an outstanding capital stock as
set forth on the balance sheet of the Company included in the
Prospectus/Consent Solicitation Statement; the Shares have been duly authorized
for issuance pursuant to the Merger Agreement and the Prospectus/Consent
Solicitation Statement; the Shares, when issued by the Company pursuant to the
Prospectus/Consent Solicitation Statement and the Merger Agreement, will be,
and all outstanding shares of capital stock of the Company are, validly issued,
fully paid and nonassessable securities of the Company; the Shares conform to
all statements relating thereto contained in the Registration Statement and
Prospectus/Consent Solicitation Statement and such statements conform to the
rights set forth in the instruments defining the same; and the issuance of the
Shares is not subject to any preemptive or other similar rights.
(d) The Consolidation, and the execution, delivery and
performance of this Agreement and the Merger Agreement, and the issuance of the
Shares, do not and will not violate any law, regulation, order, award,
judgment, determination, writ, injunction or decree applicable to the Company
or any of its subsidiaries or any of their respective properties or assets,
except for such violations that would not, either singly or in the aggregate,
have a material adverse effect on the condition (financial or otherwise) or on
the operations, earnings, business affairs or business prospects of the
Company.
(e) The Consolidation, and the execution, delivery and
performance of the Operative Agreements, and the issuance of the Shares, do not
and will not (i) conflict with or violate the certificate of incorporation or
by-laws of the Company or any of its subsidiaries or (ii) conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default (with or without due notice and/or lapse of time) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, any indenture,
loan agreement or other agreement, instrument or contract affecting the Company
or any of its subsidiaries or to which the Company or any of its subsidiaries
is a party or by which it or any of its subsidiaries or any of their respective
properties is bound, except for such conflicts, violations, defaults, liens,
charges or encumbrances that would not, either singly or in the aggregate, have
a material adverse effect on the condition (financial or otherwise) or on the
operations, earnings, business affairs or business prospects of the Company.
(f) The Company has filed the Registration Statement with the
Commission, and has filed or will promptly file a required any and all
necessary amendments or supplements thereto. An accurate and complete copy of
the Registration Statement and any amendments thereto (including the documents
filed therewith as exhibits thereto) have been or will be furnished to you
promptly upon the filing thereof.
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(g) The Registration Statement (and all documents incorporated
therein by reference) filed with the Commission and the Offer Materials filed
with the Commission or distributed to the Partners, comply and will comply at
the dates of such filing and distribution (unless the Registration Statement
includes a Prospectus/Consent Solicitation Statement or Supplement which has
been provided to the any of the Partners of a Partnership by the Company, any
of the Partnerships, or the Sponsor in connection with the Consolidation which
differs from the Prospectus/Consent Solicitation Statement or Supplement on
file at the Commission at the time the Registration Statement becomes
effective, in which case such date with respect to such Prospectus/Consent
Solicitation Statement or Supplement shall be the date it is first provided to
any such Partners) and at the Closing Date, with the provisions of the
Securities Act, the Securities Act Regulations, the Exchange Act and the
Exchange Act Regulations; when the Registration Statement or any amendment
thereto becomes effective, none of the Registration Statement (including,
without limitation, the Prospectus/Consent Solicitation Statement and
Supplements), the documents incorporated therein by reference and all
amendments thereto contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading; and none of the Offer
Materials contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading.
(h) The accountants who certified the financial statements of
the Company and supporting schedules included in the Registration Statement and
the Prospectus/Consent Solicitation Statement are independent public
accountants as required by the Securities Act, the Securities Act Regulations,
the Exchange Act and the Exchange Act Regulations.
(i) The financial statements of the Company included in the
Registration Statement, the Prospectus/Consent Solicitation Statement and the
Supplements present fairly the financial position of the Company as at the date
indicated, and, except as otherwise stated therein, said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis; the supporting schedules included in the
Registration Statement, the Prospectus/Consent Solicitation Statement and the
Supplements present fairly the information required to be stated therein; the
selected financial data included or incorporated by reference in the
Registration Statement, the Prospectus/Consent Solicitation Statement and the
Supplements present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement, the Prospectus/Consent
Solicitation Statement and the Supplements; the pro forma financial information
included in the Registration Statement, the Prospectus/Consent Solicitation
Statement and the Supplements presents fairly the information shown therein and
has been prepared in accordance with the Commission's rules
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and guidelines with respect to pro forma financial statements, has been properly
compiled on the pro forma bases described therein, and, in the opinion of the
Company and the Sponsor, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(j) Since the respective dates as of which information is given
in the Registration Statement, the Prospectus/Consent Solicitation Statement
and the Supplements, except as otherwise stated therein or contemplated
thereby, (i) there has been no material adverse change in the condition
(financial or otherwise) or in the operations, earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary
course of business, (ii) there have been no transactions entered into by the
Company or any of its subsidiaries which are material with respect to the
Company, and (iii) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(k) There are no contracts or documents of the Company or any
of its subsidiaries or any of the Partnerships which are required to be filed
as exhibits to the Registration Statement which have not been so filed.
(l) The Consolidation, the issuance of the Shares, and the
execution, delivery and performance of the Operative Agreements by the Company,
fully comply and will fully comply with all applicable laws and no consent,
license, authorization or approval of, filing with, any governmental authority
or agency or third party by or with respect to the Company is required in
connection with the consummation by the Company of the Consolidation, other
than (i) any consent, approval or filing as may be required under state
securities laws, (ii) filings evidencing the consummation of the Consolidation,
(iii) as described in the Prospectus/Consent Solicitation Statement and the
Supplements for each Partnership.
(m) Upon consummation of the Consolidation, the Company will
not be an "investment company," as that term is defined in the 1940 Act, and
will not be subject to regulation under the 1940 Act.
(n) Neither the Company nor any of its subsidiaries is
currently in violation, or at the Closing Date will be in violation, of its
certificate of incorporation or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which it is a party or by which it may be bound, or to which any of its
property or assets is subject, except for any such defaults which would not,
either singly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise) or on the operations, earnings, business
affairs or business prospects of the Company.
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(o) Upon consummation of the merger of the Participating
Partnerships with and into the Company all property belonging to the
Partnerships will be the property of the Company, in each case subject to the
debts, liabilities, obligations and duties of the Participating Partnerships.
(p) To the Company's and the Sponsor's knowledge, there is no
action , suit or proceeding before or by any court or governmental agency or
body, or foreign, now pending or threatened against or affecting the Company or
any of its subsidiaries or any of their respective properties, which is
required to be disclosed in the Prospectus/Consent Solicitation Statement and
the Supplements/Consent Solicitation Statement or any Supplement (other than as
disclosed therein), or which might, either singly or in the aggregate, result
in any material adverse change in the condition (financial or otherwise) or in
the operations, earnings, business affairs or business prospects of the
Company, or which might, either singly or in the aggregate, materially and
adversely affect the properties or assets thereof or which might, either singly
or in the aggregate, materially and adversely affect the Consolidation or the
issuance of the Shares; all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Prospectus/Consent Solicitation Statement or a Supplement, including ordinary
routine litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents of the Company
or any of its subsidiaries required to be described in the Prospectus/Consent
Solicitation Statement and the Supplements/Consent Solicitation Statement or a
Supplement that are not described as so required.
(q) The Company does, and immediately after giving effect to
the Consolidation will, possess such certificates, licenses, authorities or
permits issued by the appropriate state or federal regulatory agencies or
bodies necessary to conduct the business now operated by the Participating
Partnerships, and the Company has not received any notice of proceedings
relating to eh revocation or modification of any such certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition (financial or otherwise) or the operations, earnings, business
affairs or business prospects of the Company.
(r) In connection with the Consolidation, the Company has
complied and will comply in all material respects with the Securities Act, the
Securities Act Regulations, the Exchange Act and the Exchange Act Regulations.
(s) No restraining order has been issued or proceedings,
litigation or investigation initiated or, to the Company's and the Sponsor's
best knowledge, threatened, with respect to the Consolidation, the issuance of
the Shares, or the execution, delivery and performance of any of the Operating
Agreements by or before the Commission, or any other regulatory,
administrative,
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governmental or public body or authority or any court other than as described
in the Prospectus/Consent Solicitation Statement and other than the receipt by
the sponsor of requests for investor lists from several parties.
(t) Any certificate signed by any officer of the Company or the
Sponsor and delivered to you or your counsel shall be deemed a representation
and warranty by the Company or the Sponsor, respectively, to you as to the
matters covered thereby.
10. COVENANTS OF THE PARTNERSHIPS, THE SPONSOR AND THE COMPANY.
(a) The Company, the Partnerships and the Sponsor shall notify
you immediately, and confirm the notice in writing, (i) of the effectiveness of
the Registration Statement and any amendment thereto (including any post-
effective amendment), (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment or supplement to the
Registration Statement, the Prospectus/Consent Solicitation Statement, any
Supplement or any other Offer Materials or for additional information, and (iv)
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, the suspension of the qualification of the
Shares in any jurisdiction or the initiation of any proceedings for any such
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order or suspension and, if any stop order or suspension is issued,
to obtain the lifting thereof at the earliest possible moment. The
Partnerships, the Sponsor and the Company shall notify you immediately, and
confirm the notice in writing, of any events described in clauses (ii) and
(iii) above pertaining to the Prospectus/Consent Solicitation Statement, any
Supplement or other Offer Materials.
(b) The Company shall deliver to each of you one signed copy of
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith).
(c) The Company shall use its best efforts to qualify the
issuance of Shares in connection with the Consolidation in each state
jurisdiction in which such qualification is required and to file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect through the effective date of the
Consolidation.
(d) The Company shall use its best efforts to effect the
listing of the Shares on the American Stock Exchange.
(e) The Partnerships, the Sponsor and the Company shall advise
you promptly of the occurrence of any event which may or could cause any
Partnership, the Sponsor or the Company to amend or terminate the Consolidation
or the Merger Agreement and also advise you promptly of any proposal or
requirement to amend or supplement the Prospectus/Consent
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Solicitation Statement, any Supplement, any Offer Materials or any other filing
required by the Securities Act, the Exchange Act, the Securities Act
Regulations or the Exchange Act Regulations and no such document shall be filed
without your prior approval.
11. INDEMNIFICATION AND CONTRIBUTION. The Partnerships, the Sponsor
and the Company jointly and severally agree, whether or not the Consolidation
is consummated or any Consents are submitted pursuant to the Prospectus/Consent
Solicitation Statement, to indemnify and hold harmless you (including any
affiliated companies) and any officer, director, employee or agent of you or
such affiliated companies and any person who controls you (including any
affiliated companies) within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (you and each such person to be so indemnified
being herein referred to as an "Indemnified Person"), from and against any and
all losses, claims, damages, expenses and liabilities whatsoever, joint or
several to which such Indemnified Person may become subject, under the
Securities Act, the Securities Act Regulations, the Exchange Act, the Exchange
Act Regulations or any other applicable federal or state law or otherwise,
related to or arising out of (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereto, or the omission or alleged omission to state in any such
document a material fact required to be stated therein or necessary to make the
statements made therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus/Consent
Solicitation Statement or any amendment thereto, any Supplement of any
amendment thereto, any other Offer Materials or any other material used or
authorized for use by any of the Partnerships, the Sponsor or the Company in
connection with the Consolidation, or the omission or alleged omission to state
in any such document a material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances under which
they were made, not misleading, (iii) any withdrawal by any Partnership, the
Sponsor or the Company from, or failure by any Partnership, the Sponsor or the
Company to consummate, the Consolidation, (iv) any breach by any partnership
the Sponsor or the Company of any representation or warranty contained herein
or failure to comply with any of the agreements obtained herein or (v) the
Consolidation, this Agreement or your engagement pursuant to, or your
performance of the services contemplated by this Agreement. None of the
Partnerships, the Sponsor or the Company shall, however, be liable for such
loss, claim, damage, expense or liability under subparagraph (v) of this
Section 11 to the extent that such loss, claim, damage, expense or liability is
found in a final judgment by a court of competent jurisdiction or in a final
settlement among you and the Company, the Sponsors and the Partnerships to have
resulted from your bad faith, gross negligence, recklessness or willful
misconduct.
The Partnerships, the Sponsor and the Company jointly and
severally agree to reimburse each Indemnified Person for all expenses
(including reasonable counsel fees and expenses) as they are incurred in
connection with the investigation of, preparation for or defense
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of any pending or threatened claim or any action or proceeding arising
therefrom, whether or not such Indemnified Person is a party and whether or not
such claim, action or proceeding is initiated or brought by any of the
Partnerships, the Sponsor or the Company.
Promptly after receipt by an Indemnified Person of written
notice of any claim or commencement of any action as to which such Indemnified
Person may seek indemnification hereunder, such Indemnified Person shall notify
the Partnerships, the Sponsor and the Company in writing of such claim or of
the commencement of such action; but the omission so to notify the
Partnerships, the Sponsor, or the Company shall not relieve the Partnerships,
the Sponsor or the Company rom any liability which they may have to such
Indemnified Person under this Section 11 or otherwise. In the event that any
such action shall be brought against any Indemnified person, and such
Indemnified Person shall notify the Partnerships, the Sponsor and the Company
of the commencement thereof, the Partnerships, the Sponsor or the Company shall
assume the defense thereof, with counsel reasonably satisfactory to such
Indemnified Person, and shall pay the fees and expenses of such counsel;
provided, however, that if there exists or will exist a conflict of interest
which would make it inappropriate in the reasonable judgment of the Indemnified
Person for the same counsel to represent both the Indemnified Person, on the
one hand, and any of the Partnerships, the Sponsor or the Company or any of
their affiliates or associates, on the other hand, or if such Indemnified
Person reasonably determines that the assumption of the defense of such claim
or action by the Company, the Sponsor, any Partnership or any other affiliates
or associates does not adequately represent such Indemnified Person's
interests, the Indemnified person shall be entitled to retain its own counsel
at the joint and several expense of the Partnerships, the Sponsor and the
Company. Notwithstanding the previous sentence, in no event shall the Company,
the Sponsor and the Partnerships be liable for the fees and expenses of more
than one counsel (in addition to local counsel) for all Indemnified Persons in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. In any action or proceeding the defense of which is assumed by
the Company, the Sponsor or the Partnerships, the Indemnified Persons will have
the right to participate in such litigation and to retain its own counsel at
its own expense.
If the indemnification of an Indemnified Person provided for in
this Agreement was for any reason held unenforceable or was insufficient, the
Partnerships, the sponsor and the Company, jointly and severally, agree to
contribute to the claims, losses, expenses, damages or liabilities for which
such indemnification is held unavailable (i) in such proportion as is
appropriate to reflect the relative benefits to the Partnerships, the Sponsor
and the Company, on the one hand, and you, on the other hand, in connection
with the matter giving rise to such claims, losses, expenses, damages and
liabilities or (ii) if (but only if) the allocation provided for in clause (i)
is for any reason held unenforceable, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Partnerships, the
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Sponsor and the Company, on the one hand, and you, on the other hand, as well
as any other relevant equitable considerations. It is hereby agreed that, for
purposes of this paragraph, the relative benefits of the Partnerships, the
Sponsor and the Company, on the one hand, and you, on the other hand, with
respect to the Consolidation shall be deemed to be in the same proportion as
(x) the maximum total value of the consideration received or proposed to be
received by the Partners, the Sponsors (and their security-holders) and the
Company pursuant to the Consolidation (whether or not the Consolidation is
consummated) bears to (y) the fees paid to you with respect to the
Consolidation. Notwithstanding the foregoing, in any event your aggregate
contribution to all claims, losses, expenses, damages and liabilities shall not
exceed the amount of fees actually received by you with respect to the
Consolidation. The foregoing indemnity and contribution agreements shall be in
addition to any liability which the Partnerships, the Sponsor or the Company
might otherwise have to an Indemnified Person and shall survive the expiration
or termination of the Consolidation or the termination of this Agreement.
A withdrawal by you as Dealer Manager as permitted hereunder,
the termination or expiration of the Consolidation or the termination of this
Agreement by you, any of the Partnerships, the Sponsor or the Company shall not
in any way affect the rights of any Indemnified Person hereunder.
The Partnerships, the sponsor and the Company agree to promptly
notify you of the assertion of any claim or the commencement of any claim or
proceeding relating to the Consolidation or the matters subject to this Section
11, against any of them, any of their respective officers, directors or
employees or any person who controls any of them within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act.
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12. NOTICES. Any communication or notice provided for hereunder
shall be in writing and mailed, telegraphed or delivered to the applicable
party at the addresses indicated below:
If to the Partnerships or the Sponsor:
JetFleet Management Corp.
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AeroMax, Inc.
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If to Dealer Manager:
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or , as to each party, at such other address as shall be
designated by such party in a written notice complying as to delivery with the
terms of this paragraph.
13. CONDITIONS TO OBLIGATIONS OF DEALER MANAGER. Your obligation to
act as Dealer Manager hereunder shall be subject at all times to the conditions
that (i) all representations, warranties and other statements contained herein
by any of the Partnerships, the Sponsor or the Company are now, and at all
times during the period of the Consolidation shall be, true and correct in all
material respects, (ii) the Partnerships, the Sponsor and the Company at all
times during the period of the Consolidation shall have performed in a timely
manner all of their respective obligations hereunder, (iii) the Registration
Statement shall have become effective not later than the date a
Prospectus/Consent Solicitation Statement is first used in connection with the
Consolidation, and (iv) no stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the
Prospectus/Consent Solicitation Statement or any Supplement or order under the
proxy rules of the Commission pursuant to the Exchange Act with respect to the
transactions contemplated in the Registration Statement or Merger Agreement
shall have been issued and no proceedings for any such purpose shall have been
initiated or threatened by the Commission. If any condition specified in this
Section shall not
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have been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Dealer Manager by notice to the Partnerships, the Sponsor and
the Company at any time, and such termination shall be without liability of any
party to any other party except as provided in Section 18 hereof.
14. PARTIES IN INTEREST. This Agreement has been and is made for
your benefit, for the benefit of the other Indemnified Persons, for the benefit
of the Partnerships, the Sponsor and the Company and for the benefit of your
and their respective successors, assigns, executors and administrators, and no
other person shall acquire or have any right under or by virtue of this
Agreement.
15. COUNTERPARTS: SEVERABILITY. This Agreement may be executed in
any number of counterparts, and by the different parties hereto in separate
counterparts, each of which when so executed shall be an original, but all of
the counterparts shall together constitute one and the same agreement. Any
term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability with rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction.
16. MISCELLANEOUS. Subheadings are provided solely for convenience,
and are not intended to be part of this Agreement.
17. ENTIRE AGREEMENT: AMENDMENT. This Agreement supersedes all
prior negotiations and understandings of the parties hereto with respect to the
Consolidation and constitute the entire understanding of the parties hereto
with respect to the Consolidation. This Agreement may not be amended,
terminated or modified except in writing.
18. TERMINATION.
(a) The obligations of Dealer Manager, any Partnership, either
Sponsor and the Company under this Agreement, except as provided below in
clause (b), may be terminated by Dealer Manager, on the one hand, or by any
Partnership (as to itself only), either Sponsor (as to itself only) and the
Company, on the other hand, for any reason upon ten days prior written notice
to that effect to the other parties. The termination of this agreement by the
Dealer Manager will not affect the obligations of the Partnerships, the Company
or the Sponsor hereunder.
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(b) The Partnerships, the Sponsor and the Company understand
and agree that the provisions of Sections 5, 11, 13 and 19 will survive any
termination of the obligations of any of the parties either pursuant to this
Section 18 or pursuant to Sections 3(b) or 13 of this Agreement.
19. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California (not including
choice-of-laws rules thereof) applicable to agreements made and to be performed
in said State.
20. ATTORNEYS' FEES. If any party to this Agreement brings any
action to enforce its rights under this Agreement, the prevailing party shall
be entitled to recover its costs and expenses, including without limitation,
reasonable attorneys' fees and disbursements, incurred in connection with such
action, including any appeal of such action.
21. OBLIGATIONS OF PARTNERSHIPS. The Dealer Manager acknowledges
that, as among themselves, the Partnerships intend to allocate their
obligations under this Agreement, including, without limitation, the payment of
fees and expenses, indemnification and contribution, in accordance with the
exchange ratios offered to the Partners in connection with the Consolidation,
whether or not the Consolidation is consummated. Such allocation, however,
shall not affect the joint and several nature of the obligations of the
Partnerships, the Sponsor and the Company under this Agreement and shall comply
with all applicable laws, rules, regulations and orders; provided, however,
that any Partnership that is a Nonparticipating Partnership shall be deemed not
to be subject to Section 11 hereof.
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Kindly indicate your willingness to act as Dealer Manager and your
acceptance of the foregoing provisions by signing in the space provided below
for that purpose and returning to us a copy of this agreement so signed,
whereupon this agreement and your acceptance shall constitute a binding
agreement among us.
Very truly yours,
AEROMAX, INC., JETFLEET MANAGEMENT CORP.,
a California corporation a California corporation
By ____________________________ By ____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
JETFLEET AIRCRAFT, L. P., JETFLEET AIRCRAFT II, L. P.,
a California Limited Partnership a California Limited Partnership
By: CMA CAPITAL GROUP, INC., By: CMA CAPITAL GROUP, INC.,
General Partner General Partner
By _________________________ By _________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
CMA CAPITAL GROUP, INC.,
By _________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
ACCEPTED:
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By ___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
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SCHEDULE I
PARTNERSHIPS
JetFleet Aircraft, L.P.
JetFleet Aircraft II, L.P.
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