Avantair, Inc. (1) as Assignor Share 100 Holding Co., LLC(2) as Assignee Assignment of Purchase Agreement VAE-180V/2006
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Dated
June 20, 2008
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Avantair,
Inc. (1)
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as
Assignor
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Share
100 Holding Co., LLC(2)
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as
Assignee
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This
Purchase Agreement Assignment (the “Assignment”), is dated June 20, 2008 (the
“Effective Date”) and made between Avantair Inc., having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
“Assignor”), and Share 100 Holding Co., LLC, having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
“Assignee”).
WHEREAS:
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(A)
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The
Assignor and the Manufacturer (as hereinafter defined) are parties
to the
Purchase Agreement (as hereinafter defined) providing, among other
things,
for the manufacture and sale by the Manufacturer to the Assignor
of
certain Aircraft (as hereinafter
defined);
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(B)
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The
Assignee is a wholly-owned affiliate of Assignor and wishes to acquire
all
rights of Assignor under the Purchase Agreement, including the right
to
acquire the Aircraft from the Manufacturer, and the Assignor, on
the terms
and conditions hereinafter set forth, is willing to assign to the
Assignee
the Assignor’s rights, interests and obligations under the Purchase
Agreement and to the Aircraft;
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(C)
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The
Assignee is willing to accept such assignment, as hereinafter set
forth
and the Manufacturer is willing to execute and deliver to Assignee
a
Consent and Agreement to the provisions hereof in substantially the
form
attached hereto as Annex 1; and
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(D)
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On
or immediately following the Effective Date, the Assignor intends
to
transfer to Executive AirShare Corporation, a Kansas corporation
with its
principal place of Business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (“AirShare”) a majority ownership interest in
Assignee.
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NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. For
all
purposes of this Assignment, except as otherwise expressly provided or unless
the context otherwise requires, the following terms shall have the following
meanings:
“Aircraft”:
The
Embraer PHENOM 100 aircraft to be delivered under the Purchase Agreement.
“Business
Day(s)”: shall
mean a day on which banks are open for business in São ▇▇▇▇ dos ▇▇▇▇▇▇, São
Paulo in Brazil, New York, NY and Wilmington, DE, in the United
States.
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“Manufacturer”:
Embraer - Empresa Brasileira de Aeronáutica S.A., a corporation organized and
existing under the laws of Brazil, and its successors and assigns.
“Purchase
Agreement”:
Purchase
Agreement VAE- 180V/2006, dated as of September, 29th,
2006 as
the same has been amended, supplemented or otherwise modified by Amendment
1 to
Purchase Agreement VAE-180V/2006, dated June 20, 2008 (the “APA”), and that
certain Letter of Agreement VAE-181V/2006, between Manufacturer and Assignor,
dated September 29, 2006, as the same has been amended, supplemented or
otherwise modified by Amendment 1 to Letter of Agreement VAE-181V/2006, dated
June 20, 2008 (the “LOA”), a true and complete copy of the APA and LOA being
attached hereto as Exhibit A.
2. Subject
to the terms and conditions of this Assignment, Assignor does hereby sell,
assign, transfer and set over unto the Assignee all the Assignor’s rights,
interest and obligations in and to the Purchase Agreement as and to the extent
that the same relate to the Aircraft and the purchase thereof, including,
without limitation, (a) the right to take title to and delivery of the Aircraft
(b) all claims for damages in respect of the Aircraft as a result of any default
by the Manufacturer under the Purchase Agreement, and (c) any and all rights
of
the Assignor to compel performance of the terms of the Purchase Agreement in
respect of the Aircraft. The Assignee acknowledges that in exercising any rights
hereunder, it shall at all times be subject to the provisions and limitations
of
the Purchase Agreement, as if originally named Buyer in the Purchase Agreement,
including without limitation the US export control regulations or any other
applicable law. The Assignee hereby accepts such assignment subject to the
terms
hereof.
3. It
is
expressly agreed that, anything herein contained to the contrary
notwithstanding: (a) the Assignor shall at all times remain liable to the
Manufacturer under the Purchase Agreement to perform all duties and obligations
of the “Buyer” thereunder to the same extent as if this Assignment had not been
executed; and (b) the exercise by the Assignee of any of the rights assigned
hereunder shall not release the Assignor from any of its duties or obligations
to the Manufacturer under the Purchase Agreement except to the extent that
such
exercise by the Assignee shall constitute performance of such duties and
obligations.
4. Nothing
contained herein shall subject the Manufacturer to any liability to which it
would not otherwise be subject under the Purchase Agreement or modify in any
respect the Manufacturer’s contract rights thereunder or require the
Manufacturer to divest itself of title to or possession of the Aircraft
therefore until delivery thereof and payment therefore on the delivery date
as
provided therein.
5.
Without
in any way releasing the Assignor from any of its duties or obligations under
the Purchase Agreement, the Assignee hereby agrees, expressly for the benefit
of
the Manufacturer, that notwithstanding anything contained herein to the
contrary, insofar as the provisions of the Purchase Agreement relate to the
Aircraft accepted by Assignee under the Purchase Agreement, in exercising any
rights under the Purchase Agreement, or in making any claim with respect to
the
Aircraft or other things (including without limitation data, documents and
services) delivered or to be delivered pursuant to the Purchase Agreement,
the
terms and conditions of the Purchase Agreement, shall apply to and be binding
upon Assignee to the same extent as if Assignee had been the original “Buyer”
thereunder. Assignee further agrees, expressly for the benefit of the
Manufacturer, that at any time and from time to time upon the written request
of
the Manufacturer, Assignee shall promptly and duly execute and deliver any
and
all such further assurances, instruments and documents and take all such further
action as the Manufacturer may reasonably request in order to obtain the full
benefits of Assignee’s agreements set forth in this paragraph.
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6.
The
Assignee hereby confirms that it shall be deemed for all purposes to have read
and be familiar with the Purchase Agreement (as at the date hereof) and to
thoroughly understand the terms and conditions thereof.
7.
The
Assignor agrees that at any time and from time to time upon the written request
of the Assignee, the Assignor will promptly and duly execute and deliver any
and
all such further instruments and documents and take such further action as
the
Assignee may reasonably request in order to obtain the full benefits of this
Assignment and of the rights and powers herein granted.
8.
The
Assignor and Assignee herein agree that all the amounts already paid by the
Assignor to the Manufacturer under the Purchase Agreement will be applied
towards the benefit of the Assignee under the Purchase Agreement, as if it
was
paid by the Assignee. In the event that Assignor assumes the Purchase Agreement
from Assignee, all amounts paid by the Assignee pursuant to the Purchase
Agreement, shall be applied towards the benefit of the Assignor under the
Purchase Agreement, as if it was paid by Assignor.
9.
Assignee
hereby agrees to indemnify and hold harmless Assignor and its shareholders,
as
well as their respective directors, officers and employees from and against
all
liabilities, claims, demands, costs, losses or expenses (including reasonable
legal fees and costs of defense) that the indemnified parties may face or incur
in relation to this Assignment.
10.The
Assignor does hereby represent and warrant (a) that the Purchase Agreement
is in
full force and effect and is a legal, valid and binding obligation of Assignor,
enforceable in accordance with its terms and that neither Assignor nor, to
the
knowledge of Assignor, Manufacturer, are in default thereunder; (b) that
Assignor has not assigned, mortgaged, charged or pledged, and hereby covenants
that it will not assign, mortgage, charge or pledge, so long as this Assignment
shall remain in effect, the whole or any part of the rights hereby assigned
or
any of its rights with respect to the Aircraft under the Purchase Agreement
not
assigned hereby, to anyone other than the Assignee.
11.
(A)
Each of Assignor and Assignee (and any and all of their respective affiliates)
agrees that it will not disclose to any third party the terms of the Purchase
Agreement (whether or not related to the Aircraft) or this Assignment, except
(a) as required by applicable law, judicial proceeding or governmental
regulation, (b) as required for the assignment of its rights under this
Assignment in accordance with the provisions of Article 5.11 of the Purchase
Agreement, or (c) an affiliate of Assignee to which the right to take delivery
of any of the Aircraft may be assigned under the terms of the Purchase
Agreement. Any disclosure as contemplated in (b) or (c) above shall include
a
requirement that the entity to which the information is disclosed be subject
to
obligations of nondisclosure with respect to such information substantially
the
same as those contained herein.
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(B)
Without
limiting the foregoing, in the event either party (including any of their
respective affiliates), is legally required to disclose the terms of this
Assignment and/or the Purchase Agreement, each such party agrees it will
immediately notify the other party and exert its reasonable best efforts to
obtain confidential treatment of the clauses and conditions of this Assignment
and/or the Purchase Agreement relevantly designated by either party as
confidential. Without limiting its obligations pursuant to the preceding
sentence, each of Assignee and/or Assignor (and their respective affiliates)
agrees that (i) if it is required, in the opinion of counsel, to file publicly
or otherwise disclose the terms of this Assignment and/or the Purchase Agreement
under applicable federal and/or state securities or other laws, it shall
promptly (but in no case less than seven (7) Business Days prior to the proposed
filing in question, except for any SEC Form 8-K, which shall require no less
than four (4) Business Days prior to the proposed filing in question) notify
Manufacturer so that Manufacturer has a reasonable opportunity to contest or
limit the scope of such required disclosure, and Assignee and/or Assignor (and
their respective affiliates) shall request, and shall use their best reasonable
efforts to obtain confidential treatment for such sections of this Assignment
and/or Purchase Agreement as Manufacturer may designate; and (ii) it shall
not
under any circumstances file publicly or otherwise disclose the terms of this
Assignment and/or the Purchase Agreement under applicable federal and/or state
securities or other laws if it has not complied with its obligations pursuant
to
Subsection 11(B)(i). Each of Assignee and/or Assignor (and their respective
affiliates) agree and acknowledge that Manufacturer shall have the right to
terminate at any time the Purchase Agreement pursuant to Article 5.7.2 of the
Purchase Agreement if either Assignee and/or Assignor (or any of their
affiliates) fail to comply with their obligations pursuant to Subsection
11(B)(i) and 11(B)(ii) above and Subsection 11 (C) below.
(C)
Each
of
Assignee and/or Assignor (and their respective affiliates) agree and acknowledge
that prior to releasing any public announcement regarding this Assignment and/or
the Purchase Agreement, it shall obtain the written consent from Manufacturer.
To respond, either with a consent or rejection, Manufacturer shall have four
(4)
Business Days from Manufacturer’s receipt of the proposed Form 8-K filing and
five (5) Business Days from Manufacturer’s receipt of other public disclosures
from Assignee and/or Assignor.
12.This
Assignment may be executed by the parties hereto in any number of separate
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument and all of which when taken together shall constitute
one and the same instrument.
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13.THIS
ASSIGNMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS OTHER THAN SECTION 5-1401
OF
THE NEW YORK GENERAL OBLIGATIONS LAW.
Each
Party hereto hereby irrevocably agrees, accepts and submits to, for itself
and
in respect of any of its property, generally and unconditionally, the
non-exclusive jurisdiction of the courts of the State of New York in the City
and County of New York and of the United States for the Southern District of
New
York, in connection with any legal action, suit or proceeding with respect
to
any matter relating to or arising out of or in connection with this Assignment
or any other operative agreement and fully waives any objection to the venue
of
such courts. Furthermore to the fullest extent permitted by applicable law,
each
Party hereby waives, and agrees not to assert, by way of motion, as a defense,
or otherwise, in any such suit action or proceeding any claim that it is not
personally subject to the jurisdiction of the above named courts, that the
suit,
action or proceeding is brought in an inconvenient forum, or that the venue
of
the suit, action or proceeding is improper.
EACH
PARTY HERETO HEREBY EXPRESSLY WAIVES, TO THE FULLY EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS ASSIGNMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY
IN
WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly
executed as of the day and year first above written.
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Title:
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Chief
Executive Officer
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Share
100 Holding Co., LLC
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Title:
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Chief
Executive Officer of Managing Member, Avantair Inc.
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Witnesses:
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/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
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/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇
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Executive
Vice President, Avantair
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Contracts
Manager, Embraer Executive
Jets
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