exv10w28






Exhibit 10.28




AMENDMENT N° 5 TO THE




AIRCRAFT PURCHASE AGREEMENT


This Amendment N°5 (“Amendment N°5”) dated April 17, 2009 is made between



AIRBUS S.A.S., a société par actions simplifiée, created and existing under French law having its
registered office at 1 rond-point Maurice Bellonte, 31707 Blagnac-Cedex, France and registered with
the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (the “Seller”),



and



AYR FREIGHTER LLC a limited liability company organized and existing under the laws of the State of
Delaware (hereinafter referred to as the “Buyer”),




WHEREAS:





	A)	 	the Buyer and the Seller have entered into a purchase agreement dated June 20th, 2007 which
covers the manufacture and the sale by the Seller and the purchase by the Buyer of fifteen
(15) A330-200 Freighter aircraft (the “Freighter Aircraft”) (the “Purchase Agreement”),
	 
	G)	 	the parties amended the Agreement to incorporate the new Pratt and Whitney 4170 Propulsion
Systems as set out in the amendment to the Agreement (as defined below) dated as of November
6th 2007 (“Amendment No 1”).
	 
	H)	 	the parties amended the Agreement to (i) convert five (5) Freighter Aircraft into A330-200
Airbus aircraft type (the “A330-200 Aircraft”), (ii) to modify certain Scheduled Delivery
Months of the Freighter Aircraft, and (iii) to cancel three (3) Freighter Aircraft as set as
set out in the amendment to the Agreement dated July 31st 2008 (“Amendment No 2”).
	 
	I)	 	the parties amended the Agreement to modify the Scheduled Delivery Month for certain Aircraft
as set out in amendment to the Agreement dated September 30th 2008 (“Amendment No 3”).
	 
	J)	 	the parties amended the Agreement to, amongst other things, modify the Scheduled Delivery
Month for certain Aircraft, as set out in the amendment to the Agreement dated February 24th
2009 (“Amendment No 4”).




The Purchase Agreement together with the Amendment N°1, Amendment N°2, Amendment N°3 and/or
Amendment N°4 shall be referred to as the “Agreement”





	F)	 	the parties hereby agree to enter into the Amendment N°5 in order to provide for the terms
under with the Buyer shall engage in a purchase and lease back transaction involving an
aircraft which is the subject of a purchase agreement between the Seller and another customer.





Amendment No. 5 — AYR Freighter LLC and Airbus S.A.S.




 









 








THEREFORE, IT IS AGREED:



In this Amendment N°5, capitalised terms (other than as defined herein) used shall have the meaning
ascribed to them in the Agreement.




1. Schedule 1 to the Agreement Delivery Schedule





	1.1	 	The parties agree that the Buyer intends to close, through an affiliate or a special purpose
company established for the benefit of the Buyer, a “purchase and leaseback” transaction
involving one (1) A330-200 model aircraft scheduled for delivery in May 2009 (the “PLB
Aircraft”) ordered by Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad
anónima created and existing under Colombian law having its registered office in Bogota,
Colombia (the “PLB Party”) from the Seller pursuant to a definitive purchase agreement between
the PLB Party and the Seller dated February 16, 2007 (the “PLB Party Agreement”) upon delivery
of such PLB Aircraft (the “PLB Transaction”).
	 
	1.2	 	The terms and conditions of the PLB Transaction shall be subject to agreement between the
Buyer and the PLB Party. Any transfer, novation or assignment of the PLB Party’s rights under
the PLB Party Agreement shall be made with the prior written consent of the Seller and in a
form and substance satisfactory to the Seller.
	 
	1.3	 	The parties hereby acknowledge that any other consideration between the Buyer and Seller with
respect to the PLB Transaction shall be agreed by the Buyer and Seller in writing.





2. Miscellaneous





	2.1	 	The Agreement, its Exhibits, its Letter Agreements and Amendment N°5, contain the entire
agreement in relation to their subject matter between the parties and supersede any previous
understandings, commitments and/or representations whatsoever oral or written to the extent it
relates to the subject matter hereof.
	 
	2.2	 	In the event of any inconsistencies between the terms of the Agreement, including its
Exhibits and Letter Agreements and this Amendment N°5, Amendment N°5 shall prevail to the
extent of such inconsistency.
	 
	2.3	 	The Agreement including its Exhibits and Letter Agreements shall be deemed amended and
supplemented to the extent herein provided and as so amended and supplemented shall remain in
full force and effect.
	 
	2.4	 	This Amendment N° 5 shall not be modified or varied except by an instrument in writing
executed by both parties or by their duly authorised representatives.
	 
	2.5	 	Clauses 22.2 (Notices), 22.3 (Waiver), 22.6 (Interpretation and Law) 22.4 (International
Supply Contract), 22.13 (Language), 22.15 (Counterparts) and 22.9 (Confidentiality) of the
Agreement shall apply to this Amendment N° 5 mutatis mutandis as if set out in full herein.
	 
	2.5.1	 	The parties hereby agree that the present Amendment N°5 shall enter into full force and
effect from the date mentioned here above.





Amendment No. 5 — AYR Freighter LLC and Airbus S.A.S.




 









 







If the foregoing correctly sets forth our understanding, please execute two (2) originals in
the space provided below and return one (1) original of this Amendment No 5 to the Seller.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Agreed and Accepted	 	 	 	Agreed and Accepted	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	For and on behalf of	 	 	 	For and on behalf of	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AYR FREIGHTER LLC	 	 	 	AIRBUS S.A.S.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BY:	 	/s/ Michael Inglese	 	 	 	BY:	 	/s/ Christophe Mourey	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	ITS:
	 	Manager
	 	 
	 	 	 	ITS:
	 	Senior Vice President Contracts
	 	 






	 	 	 
	DATE: April 17, 2009

	 	DATE: 17 April, 2009






Amendment No. 5 — AYR Freighter LLC and Airbus S.A.S.