Exhibit
10.16


 


SAP 4400071312


ECM 9960015230


 


AMENDMENT TO AIRCRAFT PURCHASE AGREEMENT


 


This
Amendment (“Amendment”), dated as of
December 11, 2009, is by and between San Diego Gas & Electric
Company, a California corporation having its offices at 8330 Century Park
Court, San Diego, California (“Purchaser”),
and Erickson Air-Crane Incorporated, a Delaware corporation having its offices
at 5550 S.W. Macadam Avenue, Suite 200, Portland, Oregon (“Seller”).


 


RECITALS


 


A.                                   Purchaser and
Seller are parties to that certain Aircraft Purchase Agreement, dated as of
May 27, 2009, (the “Agreement”),
pursuant to which Purchaser shall purchase the Aircraft from Seller and Seller
shall sell the Aircraft to Purchaser on the terms and conditions set forth
therein.


 


B.                                     Purchaser and
Seller desire to amend the Agreement on the terms and conditions set forth in
this Amendment.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Purchaser and Seller hereby agree as follows:


 


1.                                       Incorporation
of Recitals.  The
Recitals set forth above are hereby incorporated herein as if set forth in the
body of this Amendment.


 


2.                                       Capitalized
Terms.  Capitalized terms used in this
Amendment without definition shall have the definitions set forth in the
Agreement.


 


3.                                       Amendment of
Agreement.  The
Agreement is hereby amended as follows:


 


a.               The definition
of “Scheduled Delivery Date” is revised by deleting the date “December 15,
2009” and replacing it with the date “December 18, 2009”.


 


b.              Section 2.2.1
is revised by deleting after the word “pay” at the beginning thereof the phrase
“the balance of the Purchase Price to the Seller” and replacing it with the
phrase [* * *], with the balance of the Purchase Price to be paid to the Seller
on or before January 4, 2010”.


 






[*
* *]  This confidential material has been
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.


 


Acknowledgment Copy


 


1

















 


c.               Section 2.4.2
is revised by deleting the sub- sub- subparagraph (v) thereof and
replacing it with new sub- sub- subparagraphs (v) and (vi) as
follows:


 


“(v)
[* * *] paid on December 18, 2009 (“Payment 5”).


 


(vi)
[* * *] paid on January 4, 2010 (“Final Payment”)
to the bank account set forth below:


 


[*
* *]


 


d.              Section 2.6.1
is revised by deleting from the end of the first sentence thereof the date
“January 30, 2013” and replacing it with the date “July 31, 2013”.


 


e.               Section 2.6.3
is revised by deleting the text thereof in its entirety and replacing it with
the following text:


 


“The
repurchase price for the Aircraft (“Aircraft Repurchase Price”)
shall be the fair market value of the Aircraft determined in accordance with
the following procedure: Purchaser and Seller shall each appoint a qualified
independent aircraft appraiser to render a written appraisal of the Aircraft’s
fair market value.  The fair market value
shall be the average of the two appraisals, provided that if the
difference between the two appraisals is greater than ten percent (10%) and the
parties are unable to agree on a value, then the two appraisers shall appoint a
third qualified independent aircraft appraiser, whose written appraisal shall
be averaged with the nearest of the two original written appraisals to
determine the fair market value.”


 


f.                 Section 5.1.1(i)
is revised by deleting therefrom the phrase “Daugherty, Fowler, Peregrin,
Haught & Jenson,” and replacing it with the phrase “McAfee &
Taft,”.


 


g.              Section 5.2.1(g)
is revised by deleting therefrom the phrase “Final Payment” and replacing it
with the phrase “Payment 1, Payment 2, Payment 3, Payment 4 and Payment 5”.


 


3.                                       Counterpart
Execution.  This
Amendment may be executed in multiple counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
together shall constitute one instrument.


 


4.                                       Effect of
Amendment.  Except as
specifically modified by this Amendment, all of the terms, conditions and
provisions of the Agreement shall be unmodified and shall remain in full force
and effect.


 


[Signatures appear on following page.]


 


2

















 


IN
WITNESS WHEREOF, Purchaser and Seller hereby execute this Amendment as of the
date first above written.


 


 


Purchaser


 


	
  San Diego Gas & Electric Company

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Steven C. Reese

  	
   

  
	
  Name:

  	
  Steven
  C. Reese, C.P.M.

  	
   

  
	
  Title:

  	
  Portfolio
  Manager, Electric Materials, 

  	
   

  
	
   

  	
  Generation,
  and Construction

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Seller

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Erickson Air-Crane Incorporated

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Charles E. Ryan

  	
   

  
	
  Name:

  	
  Charles
  E. Ryan

  	
   

  
	
  Title:

  	
  CFO

  	
   

  



 


3

















 


SAP 4400071312


ECM 9960015230


 


SAN DIEGO GAS & ELECTRIC COMPANY


as Purchaser


 


and


 


ERICKSON AIR-CRANE INCORPORATED


 


as Seller


 






 


AIRCRAFT PURCHASE AGREEMENT IN RESPECT OF


ONE (1) ERICKSON S-64F AIRCRAFT


MANUFACTURER’S SERIAL NUMBER 64095


 






 


Supplier Copy


 

















 


CONTENTS


 


	
  CLAUSE

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions
  and Interpretation

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Agreement
  to Sell and Purchase

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Delivery
  and Title

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Representations
  and Warranties

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Conditions
  Precedent

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Fees
  and Expenses

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Registration
  Fees

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Indemnities

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Assignments

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Amendments

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Notices

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Miscellaneous

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  Governing
  Law

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  Jurisdiction

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1: 
  Form of Bill Sale

  	
   

  	
  27

  
	
   

  	
   

  	
   

  
	
  Schedule 2: 
  Delivery Conditions

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
  Schedule 3 
  Acceptance Certificate

  	
   

  	
  32

  
	
   

  	
   

  	
   

  
	
  EXECUTION PAGE

  	
   

  	
  33

  



 

















 


THIS
AIRCRAFT PURCHASE AGREEMENT dated as of 26
May 2009


 


BETWEEN


 


(1)                                  SAN DIEGO GAS & ELECTRIC
COMPANY a corporation organized and existing under the laws of the State of
California and having its offices at 8330 Century Park Court, San Diego,
California 92123-1530 (the “Purchaser”);
and


 


(2)                                  ERICKSON AIR-CRANE INCORPORATED,
a corporation organized and existing under the laws of the State of Delaware and having its
offices at 5550 S.W. Macadam Avenue, Suite 200, Portland, OR 97239 (the “Seller”).


 


IT IS
AGREED as follows


 


1.                                      DEFINITIONS AND INTERPRETATION


 


1.1                                 Definitions


 


The
terms set forth in this Clause 1.1 when used in this Agreement shall have the
meanings set forth herein:


 


“Acceptance Certificate” means an acceptance certificate in
the form set out in Schedule 3.


 


“AFCS” means Automatic Flight Control System.


 


“Agreement” means this aircraft purchase agreement together
with the Schedules (which form an integral part hereof) as originally executed
by the parties hereto, as the same may be amended, modified, novated, replaced
or supplemented from time to time.


 


“Aircraft” means the Airframe, together with the Engines and
all Parts installed at Delivery or, with respect to any reference to the
Aircraft after the Redelivery Date, installed at the Redelivery Date, and where
the context permits, references to the “Aircraft” shall include the Aircraft
Documentation and, unless otherwise provided herein, shall mean the Aircraft as
a whole and any part thereof.


 


“Aircraft Documentation” means the manuals, logbooks and
other records relating to the Aircraft or any part thereof delivered by the
Seller to the Purchaser which shall include, without limitation, all records,
manuals, logbooks and other documentation required on the Delivery Date by the
rules and regulations of the FAA for Purchaser to take title to, own, control,
use, operate, repair and maintain the Aircraft.


 


“Aircraft Modification and Spare Parts Purchase Agreement”
means that certain agreement dated as of the date of this Agreement between
Seller and Purchaser with respect to the Modification and the sale of the
Spares.


 


1

















 


“Airframe” means one (1) remanufactured Erickson S-64F
airframe with manufacturer’s serial number 64095, together with all Parts
installed at Delivery relating thereto but excluding the Engines.


 


“Bill of Sale” means a bill of sale substantially in the form
set out in Schedule 1 (Form of Bill of Sale).


 


“Cape Town Convention” has the meaning assigned to
such term in Clause 7.


 


“Crew Provisioning Agreement” means that certain agreement
dated as of the date of this Agreement between Seller and Purchaser with
respect to Seller providing to Purchaser certain crew members to operate the
Aircraft for a period of 24 months from the Redelivery Date.


 


“Data” means all information and data of any type, form or
nature (including but not limited to, designs, drawings, blueprints, tracings,
plans, models, layouts, software, specifications, technical publications,
electronic transmittals, and memoranda) which may be furnished or made
available to Purchaser relating to the Aircraft, Spares, AFCS or the
transactions contemplated as the result of this Agreement, the Aircraft
Modification and Spare Parts Purchase Agreement or the Crew Provisioning
Agreement designated in writing or marked by Seller as “Confidential”.


 


“Delivery” means the sale and purchase of, and transfer of
title to, the Aircraft in accordance with this Agreement.


 


“Delivery Conditions” are set forth in Schedule 2.


 


“Delivery Date” means the date on which the Aircraft is
delivered by the Seller to the Purchaser in accordance with this Agreement.


 


“Delivery Location” means Central Point, Oregon or such other
location as may be mutually agreed in writing by Seller and Purchaser.


 


“Dollars” and the sign “$” mean the
lawful currency of the United States of America.


 


“Effective Time” means the time at which Delivery shall
occur.


 


“Encumbrance” means any lien, claim or encumbrance with
respect to the Aircraft or Spares.


 


“Engines” means the two (2) engines installed on the Airframe
at Delivery and “ Engine” shall
mean each of them.


 


“Expense” means any and all liabilities, obligations, losses,
damages, penalties, fines, claims (whether fraudulent, groundless, false or
not), demands, actions, suits, judgements, 


 


2

















 


legal
proceedings (whether civil or criminal), investigations, costs, disbursements
and expenses (including legal fees) of every kind and nature whatsoever.


 


“FAA” means the United States Federal Aviation Administration.


 


“FAA Bill of Sale” means a Federal Aviation
Administration Bill of Sale (AC Form 8050-2) conveying title to the Aircraft.


 


“Final Payment” shall have the meaning set forth in Clause
2.4.2(ii).


 


“Foreign Object Damage” means any damage to the Aircraft
caused by objects which are not part of the Aircraft.


 


“Initial Payment” shall have the meaning set forth in Clause
2.4.2(i).


 


“Modification” means the installation and certification of
the AFCS pursuant to the Aircraft Modification and Spare Parts Purchase
Agreement.


 


“Part” means any
part, furnishing, appliance, module, accessory, instrument, component, radar,
radio, fixtures, fittings or other item of equipment (other than a complete
Engine).


 


“Purchase Price” means an amount equal to $ [* * *] which
amount for the avoidance of doubt shall be exclusive of Transfer Taxes (if
any).


 


“Purchaser’s Conditions Precedent” has the meaning given to
such term in Clause 5.1.1.


 


“Redelivery Date” means the date possession of the Aircraft
and title to the Spares and the Modification are given to Purchaser upon
completion of the Modification.


 


 “Scheduled Delivery Date”
means on or about December 15, 2009.


 


“Seller Indemnitees” has the meaning given to
such term in Clause 8.1.


 


“Seller’s Conditions Precedent” has the meaning given to such
term in Clause 5.2.1.


 


“Spares” means those spare parts listed on Schedule 2
of the Aircraft Modification and Spare Parts Purchase Agreement.


 


“Taxes” means any and all fees, taxes (including, without
limitation, income, gross receipts, sales, rental, use, turnover, VAT, property
(tangible and intangible), excise and stamp), licenses, liens, imposts, duties,
recording charges, assessments, withholdings of any 


 






[* * *]  This confidential material has been omitted
and filed separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment.


 


3

















 


nature,
together with any assessments, penalties, fines, additions to tax and interest
thereon (each individually a “Tax”).


 


“Total Loss” means any of the following events:


 


(a)                                  loss of the Aircraft or loss
of the use of the Aircraft due to theft, hi-jacking, disappearance,
destruction, damage beyond repair or rendering of the Aircraft permanently
unfit for normal use for any reason whatsoever;


 


(b)                                 any damage to the Aircraft
which results in an insurance settlement on the basis of an actual total loss
or an agreed or arranged total loss;


 


(c)                                  the condemnation or
confiscation or the requisition of title by any government entity or taking of
title to the Aircraft by any government entity;


 


(d)                                 the requisition for use or
hire or seizure of possession of the Aircraft by any government body that shall
have resulted in the loss of possession of such property by Seller and such
seizure or requisition shall have continued for a period which extends beyond
the Effective Time.


 


“Transaction Documents” means this Agreement, the Aircraft
Modification and Spare Parts Purchase Agreement, the Crew Provisioning
Agreement, the Acceptance Certificate, the Bill of Sale and the FAA Bill of
Sale, and the AFCS and Spare Parts Bill of Sale delivered under the Aircraft
Modification and Spare Parts Purchase Agreement.


 


“Transfer Taxes” shall mean any and all present and future
sales, use, personal property, ad valorem,
value-added, withholding, transfer, customs, VAT, stamp, documentary or other
similar Taxes, levies, imposts, duties, fees or withholdings, together with any
penalties, fines, surcharges or interest thereon and “Taxation”
shall be construed accordingly.


 


“VAT” means value added tax and any other tax of similar
nature in any jurisdiction.


 


1.2                                 Interpretation


 


Any
reference in this Agreement to:


 


1.2.1                        any “Clause” or “Schedule” is a
reference to such Clause or Schedule of, or to, this Agreement;


 


1.2.2                        “consent” also includes an approval, authorisation,
exemption, filing, license, order, permission, recording or registration;


 


1.2.3                        “hereof”, “herein” and “hereunder” and other words of similar import means this
Agreement as a whole and not any particular part hereof;


 


4

















 


1.2.4                        “person” includes any individual, firm, company, corporation,
partnership, joint venture, trust, unincorporated body of persons or any state
or government or any instrumentality, agency or sub division thereof; and


 


1.2.5                        words importing
the singular number include the plural and vice versa.


 


1.3                                 Headings


 


Clause
and Schedule headings are for ease of reference only and shall not affect
the interpretation of any of the provisions hereof.


 


2.                                      AGREEMENT TO SELL AND PURCHASE


 


2.1                                 Sale of Aircraft and Spares


 


Upon
and subject to the terms and conditions of this Agreement, and in particular
but without limitation, subject to the fulfillment to the satisfaction of, or
waiver by, the Seller of the Seller’s Conditions Precedent, the Seller hereby
agrees, in consideration of the payment by the Purchaser of the Purchase Price,
to sell, deliver and transfer all legal and beneficial title in and to the
Aircraft subject to the limited warranty set forth in Clause 4.2, but otherwise
in an “as-is, where-is” condition to the Purchaser on the Delivery Date at the
Delivery Location free and clear of all Encumbrances other than any Encumbrance
created or granted by, or through, Purchaser.


 


2.2                                 Purchase of Aircraft and Spares


 


Upon
and subject to the terms and conditions of this Agreement and, in particular
but without limitation, subject to the fulfillment to the satisfaction of, or
waiver by, the Purchaser of the Purchaser’s Conditions Precedent, the Purchaser
hereby agrees with the Seller that, on the Delivery Date, it will:


 


2.2.1                        pay the balance
of the Purchase Price to the Seller in accordance with the provisions of this
Agreement; and


 


2.2.2                        purchase and
accept delivery (and execute and deliver to Seller the Acceptance Certificate)
of the Aircraft from the Seller at the Delivery Location in an “as-is, where-is”
condition.


 


2.3                                 Total Loss


 


If
before Delivery the Aircraft suffers a Total Loss, then with effect from the
date of such Total Loss this Agreement shall without further act terminate, and
the rights and obligations of the parties hereunder shall cease and be
discharged without further liability on the part of either the Seller or the
Purchaser, save that Seller shall return to Purchaser the Initial Payment and
any other Purchase Price installment payments made by Purchaser to Seller under
Clause 2.4 of this Agreement.


 


5














 


2.4           Payments


 


2.4.1        Payment of Purchase Price


 


2.4.2        The Purchaser shall subject to the terms and
conditions of this Agreement pay the Purchase Price to the Seller as set forth
below:


 


(i)            [* * *] paid on the date
this Agreement is signed by the Purchaser and Seller (“Initial
Payment”)


 


(ii)           [* * *] on June 26,
2009 (“Payment 2”).


 


(iii)          [* * *] on July 26,
2009 (“Payment 3”).


 


(iv)          [* * *] on November 25,
2009 (“Payment 4”).


 


(v)           [* * *]  paid immediately prior to the Effective Time
(“Final Payment”) to the bank account
set forth below:


 


[*
* *]


 


2.4.3        All amounts payable by the Purchaser under this
Agreement shall be paid, subject to Clause 2.4.4 below, on the due date for
payment by remittance in Dollars in same day funds in full, without any set-off
or counterclaim whatsoever and free and clear of any deductions and
withholdings, subject to receipt by the Purchaser of a timely invoice delivered
to the Purchaser in accordance with Clause 2.4.4 below.


 


2.4.4        The Seller shall submit an invoice for each Purchase
Price instalment required hereunder, not less than five (5) days prior to
the scheduled instalment payment date. 
The Seller shall include [* * *] on all invoices submitted.  All invoices submitted shall have complete
support documentation of all charges incurred, including any data required to
calculate fees or variable rate charges. 
The Purchaser shall make payment on the later of (i) the due date
and (ii) Net one (1) day after receipt and approval of an undisputed
invoice.  Invoices shall be in duplicate
and in a format approved by the Purchaser to the following addresses:


 


	
  Original
  to:

  	
  San
  Diego Gas & Electric Company

  
	
   

  	
  Accounts
  Payable

  
	
   

  	
  PO
  BOX 129007

  
	
   

  	
  San Diego, CA 92112-9007

  



 


6

















 


	
  With
  Copies to:

  	
  San
  Diego Gas & Electric Company

  
	
   

  	
  Attention:
  Jonathan Woldemariam

  
	
   

  	
  [*
  * *]@semprautilities.com

  
	
   

  	
  Attention:
  Rachel Romani

  
	
   

  	
  [*
  * *]@semprautilities.com

  



 


2.5           Tax Gross-up


 


All
payments to be made by the Purchaser to the Seller shall be made free and clear
of and without deduction for or on account of Transfer Tax unless the Purchaser
is required to make such a payment subject to any deduction or withholding for
or on account of Transfer Tax, in which case the sum payable by the Purchaser
(in respect of which such deduction or withholding is required to be made)
shall be increased to the extent necessary to ensure that the Seller receives a
sum net of any deduction or withholding equal to the sum which it would have
received had no such deduction or withholding been made or required to be made.


 


2.6           Put
Option


 


Purchaser
shall have the right, at its sole election, to require the Seller to repurchase
the Aircraft and Spares from Purchaser (the “Put Option”)
on or about the estimated completion date of the Purchaser’s Sunrise Powerlink
transmission line project (“Sunrise”).  Upon Purchaser’s exercise of the Put Option,
Seller shall purchase the Aircraft and Spares from Purchaser, and Purchaser
shall sell and convey the Aircraft and Spares to Seller, at the prices and on
the terms and conditions set forth in this Agreement.


 


2.6.1        The date the Put Option may
be exercised (“Put Option Date”), except as
otherwise provided in this Section 2.6.1, shall be January 30,
2013.  In the event that the following
conditions are met on or before December 31, 2009:  (a) the U.S. Forest Service shall have
(i) issued a decision approving Sunrise, or (ii) entered into a
memorandum of understanding with Purchaser, Cal Fire, and the U.S. Bureau
of Land Management in satisfaction of the fire mitigation conditions set forth
in Decision No. 08-12-058 of the California Public Utilities Commission
(either (i) or (ii), a “Mitigation Agreement”);
(b) the Mitigation Agreement incorporates the use of the Aircraft for fire
mitigation following completion of Sunrise construction; and (c) the
Mitigation Agreement provides a reasonable basis, in Purchaser’s sole judgment,
for rate recovery for such use of the Aircraft, then the Put Option shall
expire effective as of the date of such Mitigation Agreement.  Purchaser shall deliver written notice to
Seller of the expiration of the Put Option (a “Put
Expiration Notice”) as soon as reasonably practicable following the
date of such Mitigation Agreement and not later than December 31,
2009.  In the event that the Mitigation
Agreement is not issued or executed by December 31, 2009 then, in the sole
discretion of Seller, Seller may thereafter deliver written notice to Purchaser
that should a Mitigation Agreement meeting conditions (a), (b) and
(c) above be executed or issued by the Put Option Date, the Put Option
shall expire effective upon the date of such Mitigation Agreement.  Purchaser shall use diligent good faith
efforts to cause the execution or issuance of a Mitigation Agreement meeting
conditions (a), (b) and (c) by December 31, 2009, and by the Put
Option Date if Seller has provided written notice as set forth in this
Section 2.6.1, and Purchaser shall promptly deliver a Put Expiration
Notice to Seller following the execution or issuance of any such Mitigation
Agreement.


 


2.6.2        Purchaser may elect, in its
sole discretion, to exercise the Put Option by delivering a written exercise
notice to Seller no less than six (6) months prior to the Put Option Date,
at which time Purchaser shall be deemed to have irrevocably exercised the Put
Option, subject only to the terms and conditions set forth in this Agreement
including, without limitation, Section 2.6.1.


 


2.6.3        Subject to the limitations
set forth in the last sentence of this Section 2.6.3, the repurchase price
for the Aircraft (“Aircraft Repurchase Price”)
shall be the appraised value of the Aircraft determined in accordance with the
following 


 


7

















 


procedure: 
Purchaser and Seller shall each appoint a qualified independent aircraft
appraiser to render a written appraisal of the Aircraft’s value.  The appraised value shall be the average of
the two appraisals, provided that if the difference between the two
appraisals is greater than ten percent (10%) and the parties are unable to
agree on a value, then the two appraisers shall appoint a third qualified
independent aircraft appraiser, whose written appraisal shall be averaged with
the nearest of the two original written appraisals to determine the appraised value.  [***].


 


2.6.4        The repurchase price for the
Spares (“Spares Repurchase Price”) [***].


 


2.6.5        If Purchaser shall have
exercised the Put Option, Purchaser and Seller shall use diligent good faith
efforts to cause the closing to take place no later than 5:00 p.m. Pacific
Time on the Put Option Date (“Scheduled Closing”),
provided, however, that the Scheduled Closing may be postponed
upon the mutual written agreement of the Parties.


 


2.6.6        Upon Purchaser’s exercise of
the Put Option, (i) Purchaser shall execute an FAA bill of sale for the
Aircraft and a general warranty bill of sale for the Aircraft and the Spares,
transferring all of Purchaser’s right, title and interest, free and clear of
all Encumbrances other than the Encumbrances granted or created by, or through,
Seller (other than Encumbrances arising through the performance by Seller of
its obligations under the Crew Provisioning Agreement), (ii) Seller and
Purchaser shall execute, acknowledge and deliver any and all other customary
agreements, documents and instruments reasonably necessary or appropriate to
consummate the purchase and sale of the Aircraft and the Spares, and
(iii) Seller shall pay to Purchaser’s specified account in immediately
available funds the sum of the Aircraft Repurchase Price and the Spares
Repurchase Price.


 


2.6.7        In the event that
construction of Sunrise shall not have been completed on or before the closing
of the Put Option, Seller shall lease back to Purchaser the Aircraft (or a
comparable helicopter which can substantially perform all tasks for which the
Aircraft is being designed and remanufactured) on then current market terms and
conditions at fair market rental rates.


 


3.             DELIVERY AND TITLE


 


3.1           Delivery and Title


 


Upon
and subject to the terms and conditions of this Agreement, sale and transfer of
title to the Aircraft by the Seller to the Purchaser hereunder shall take place
on the Delivery Date at


 


8

















 


the
Effective Time by the Seller delivering the completed and executed Bill of Sale
and FAA Bill of Sale to the Purchaser (or its authorised representative)
immediately whereupon the risk of loss or destruction of, or damage to, the
Aircraft shall pass from the Seller to the Purchaser and the Seller shall
transfer and convey to the Purchaser all legal and beneficial title to the
Aircraft free and clear of Encumbrances other than Encumbrances created or
granted by, or through, Purchaser. 
Delivery may be delayed for any of the following causes:  acts of God, war, armed hostilities, riots,
fires, floods, earthquakes or serious accidents, governmental acts or failures
to act, strikes or labor troubles causing cessation, slowdown or interruption
of work, damage to the Aircraft or Spares, failure of or delay in
transportation, or inability, after due and timely diligence, to procure
materials, systems, accessories, equipment or parts; or arising out of any
other cause to the extent it is beyond Seller’s control or not occasioned by
Seller’s negligence.  A delay resulting
from such causes shall cause the Scheduled Delivery Date to be equitably
extended.


 


3.2           Location of Aircraft


 


At
the Effective Time, the Aircraft shall be located at the Delivery Location.


 


3.3           Representative


 


Purchaser
shall appoint a representative (“Representative”) upon execution of this
Agreement who will be the agent of the Purchaser with respect to all technical
issues concerning the Aircraft, Spares and the Modification.  Seller shall provide office space for the
Representative at Seller’s Central Point, Oregon facility at no charge to the
Purchaser during the remanufacturing and Modification of the Aircraft.  All other costs and expenses related to the
Representative shall be borne by the Purchaser including, without limitation,
travel, accommodation, meals, communication, remuneration and benefits.  The prompt and professional conduct of the
Representative throughout the remanufacturing process is critical to the
Delivery of the Aircraft on the Scheduled Delivery Date in the Delivery
Condition (and the Spares and AFCS on the Redelivery Date) and Seller shall not
be responsible for any act or failure to act on the part of the Representative.


 


The
Purchaser shall indemnify and hold harmless each of the Seller Indemnitees,
(and each of their respective successors, assigns, affiliates, and their
respective officers, directors, shareholders, members, partners, employees,
agents, contractors and subcontractors ) from and against all Expense arising
from (i) the death of or injury to the Representative and to any employee,
agent or contractor of the Representative or the Purchaser, or (ii) the
loss of or damage to any property of the Representative, the Purchaser or any
employee, agent or contractor of the Representative or the Purchaser, in
connection with or arising out of any activity of the Representative, the
Purchaser or any employee, agent or contractor of either including, without
limitation, with respect to any acceptance flight, demonstration flight,
monitoring, test or inspection of the Aircraft, Spares or Modification and the
correction of any non-conformities whether or not arising from the negligence
(whether active or


 


9

















 


passive)
of any such indemnified person; excluding, however, any such Expenses attributable
to the gross negligence or willful misconduct of any such indemnified person.


 


3.4         Inspection and Test


 


Prior
to the Delivery, Purchaser shall be provided an opportunity to have the
Representative observe an inspection of the Aircraft in accordance with the
Manufacture Phase Inspection Guide Doc. 
No. 4002-3 and a test of the Aircraft in accordance with ATP E25,
501 to determine that the Aircraft meets Delivery Conditions.  Promptly upon conclusion of the inspection
and the test, the Representative shall deliver to Seller in writing a list
containing any non-conformity with respect to the Delivery Conditions, and
Seller shall agree in writing to correct any such non-conformity with respect
to the Delivery Conditions prior to the Redelivery on the Redelivery Date.


 


4.             REPRESENTATIONS AND WARRANTIES


 


4.1            Representations and Warranties of the Seller


 


The
Seller hereby represents and warrants to the Purchaser that:


 


4.1.1        the Seller is a corporation
validly existing under the laws of the State of Delaware and has the corporate
power to enter into and perform the transactions contemplated by the
Transaction Documents and is duly qualified to do business as a foreign
corporation and is in good standing in the State of Oregon;


 


4.1.2        the execution, delivery and
performance of the Transaction Documents have been duly authorised by all
necessary corporate action on the part of the Seller;


 


4.1.3        each consent required by the
Seller to authorise, or required by it in connection with the execution,
delivery, performance, legality, validity or enforceability of the Transaction
Documents has been obtained and is in full force and effect, and there is no
default in the observance or performance of any of the conditions and
restrictions (if any) imposed on or in connection therewith;


 


4.1.4        the entry by the Seller
into, and performance by the Seller of the transactions contemplated by, the
Transaction Documents do not and will not conflict with:  (1) any law or regulation or any
official or judicial order applicable to the Seller; (ii) the
constitutional documents of the Seller; or (iii) any material agreement or
document to which the Seller is a party or by which the Seller or any of its
properties is bound or require any consent, approval or authorization of, the
giving of notice to or registration with or taking any other action under any
applicable law or regulation in respect of any


 


10

















 


governmental authority with
jurisdiction, except as otherwise set forth in this Agreement;


 


4.1.5        no litigation or other
proceeding before any court, administrative agency or government body is
pending or, to the best of the Seller’s knowledge threatened against the
Seller, the outcome of which could materially adversely affect the validity of
the Transaction Documents or the rights, benefits or interest of the Purchaser
conveyed hereunder;


 


4.1.6        the Seller holds good title
to the Aircraft, free and clear of all Encumbrances other than those created or
granted by or through Purchaser, and upon Delivery, Seller shall convey to
Purchaser, its successors and assigns, good title to the Aircraft, free and
clear of any and all Encumbrances other than those created or granted by or
through Purchaser;


 


4.1.7        the Seller holds all
licenses, certificates, permits and franchises from the FAA and all other
appropriate agencies of the United States of America and/or other governmental
authorities or political subdivisions thereof having jurisdiction necessary to
authorize Seller to perform its obligations under the Transaction Documents;
and each such certificate, permit and franchise is in full force and effect.


 


4.2            Limited Warranty


 


4.2.1        Seller warrants that for a
period of [* * *] from the Redelivery Date, whichever comes first, the
Aircraft, AFCS and Spares , will be free of defects of material and workmanship
(for purposes hereof, defects of material or workmanship shall mean a failure
on the part of Seller to conform to generally accepted aircraft maintenance
industry practices as prescribed by applicable FAA regulations and manufacturer’s
specifications) and Seller will, subject to the terms and conditions set forth
below, repair or replace, at Seller’s sole discretion, any Part or
component delivered by Seller on the Delivery Date or the Redelivery Date which
is defective during the warranty period.


 


4.2.2        The warranty provided in
Clause 4.2.1 does not apply to, and Seller shall not bear any responsibility to
repair or replace, any Spare, Part or component rendered unserviceable due
to (i) improper storage, use, operation, abuse or negligent acts or
omissions of Purchaser or any third party, (ii) failure of Purchaser or
any third party to properly install, service, and/or maintain the Spare, Part or
component, (iii) the failure of Parts or components not supplied by
Seller, (iv) accident or incident or any other causes external to the
Spare, Part or component under this warranty and (v) Foreign Object
Damage.  For purposes of this
Section 4.2.2, “third parties” shall not include Seller or any officer,
director, member, partner, affiliate, employee, agent,


 


11

















 


contractor or subcontractor
of Seller involved with the use, operation, repair, maintenance, storage,
overhaul or other actions required or taken in connection with this Agreement,
the Aircraft Modification and Spare Parts Purchase Agreement or the Crew
Provisioning Agreement and the warranty contained herein shall cover any of the
actions referenced in clauses (i)-(iv) above attributable to any such
persons.  The warranty provided in Clause
4.2.1 does not apply to, and Seller shall not bear any responsibility to repair
or replace, any expendables or consumables, which are items required for normal
and routine maintenance or replaced at scheduled intervals shorter than the
warranty period, such as engine oil and hydraulic fluid, oil filters, tires,
brake pads, packings and o-rings, anti-corrosion and/or sealing compounds,
brush plating material, nuts, bolts, washers, screws, fluids, compounds, and standard
aircraft hardware that is readily available to aircraft operators from sources
other than Seller.


 


4.2.3        The warranty period
applicable to any Spare, Part or component repaired or replaced is the
remainder of the warranty period in effect for such Spare, Part or
component delivered on the Redelivery Date.


 


4.2.4        Purchaser must discover the
unserviceable Spare, Part or component within the warranty period and
shall, promptly (and in no event more than 10 days after such discovery or
notice thereof to Purchaser) notify the Seller in writing of the subject Spare,
Part or component.  Purchaser, at
its own cost and expense shall ship the affected item C.I.F. to Seller’s
facility in Central Point, Oregon and shall bare all risk of loss of or damage
to the item during shipment.  Seller
shall ship the repaired or replacement item C.I.F. to Purchaser within the
continental United States at Seller’s cost and expense and will bare all risk
of loss of or damage to such item during shipment.  If Seller determines that the Spare, Part or
component shipped to it for warranty repair or replacement was not
unserviceable, then Purchaser shall be responsible for the return of the item
to it FOB Central Point, Oregon at its cost and expense and shall bare all risk
of loss of or damage to the item and, further, Purchaser shall pay to Seller
for the cost to inspect the item and return it to service at Seller’s then
prevailing retail prices charged to customers in the ordinary course of its
business.  Such payment shall be made net
no more than thirty (30) days from the date of Seller’s invoice.


 


4.3             Disclaimer


 


4.3.1        EXCEPT AS SPECIFICALLY AND
EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE BILL OF SALE, THE SELLER MAKES
NO REPRESENTATIONS WHATSOEVER IN RESPECT OF THE AIRCRAFT, THE AFCS AND THE
SPARES (THE AIRCRAFT, THE


 


12

















 


AFCS AND THE SPARES BEING
SOLD “AS-IS, WHERE-IS” “WITH ALL FAULTS”), AND OTHER THAN AS SET FORTH IN THIS
AGREEMENT, THE SELLER SPECIFICALLY DISCLAIMS, AND EXCLUDES (i) ANY EXPRESS
OR IMPLIED WARRANTY OR REPRESENTATION AS TO CONDITION, DESCRIPTION,
AIRWORTHINESS, VALUE, SATISFACTORY QUALITY, DESIGN, QUALITY, MANUFACTURE OR
OPERATION OF ANY KIND OR NATURE, (ii) ANY EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, (iii) ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF
FREEDOM FROM ANY RIGHTFUL CLAIM BY WAY OF INFRINGEMENT OR THE LIKE, (iv) ANY
IMPLIED REPRESENTATION OR WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE
OF DEALING OR USAGE OF TRADE, AND (v) ANY OBLIGATION OR LIABILITY OF THE
SELLER ARISING IN CONTRACT OR IN TORT, WHETHER OR NOT ARISING FROM THE
NEGLIGENCE OF THE SELLER, ACTUAL OR IMPUTED, OR IN STRICT LIABILITY, INCLUDING
ANY OBLIGATION OR LIABILITY FOR LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO
THE AIRCRAFT, THE AFCS OR THE SPARES OR FOR ANY LIABILITY OF THE PURCHASER TO
ANY THIRD PARTY OR ANY OTHER DIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGE WHATSOEVER.  NO AGREEMENT ALTERING
OR EXTENDING THE SELLER’S LIABILITY FOR WARRANTIES WILL BE BINDING UPON THE
SELLER UNLESS IN WRITING AND EXECUTED BY A DULY AUTHORISED OFFICER OF THE
SELLER.


 


4.3.2        Neither party hereto will be
liable to the other for any special, consequential, incidental or exemplary
damages of any kind whatsoever arising out of or in connection with the
performance or failure to perform under the Transaction Documents.


 


4.4               Representations and Warranties of the Purchaser


 


The
Purchaser represents and warrants to the Seller that:


 


4.4.1        the Purchaser is a
corporation validly existing under the laws of the State of California and has
the corporate power to enter into and perform the transactions contemplated by
the Transaction Documents;


 


4.4.2        the execution, delivery and
performance of the Transaction Documents have been duly authorised by all
necessary corporate action on the part of the Purchaser;


 


13

















 


4.4.3        each consent required by the
Purchaser to authorise, or required by it in connection with the execution,
delivery, performance, legality, validity or enforceability of the Transaction
Documents has been obtained and is in full force and effect, and there is no
default in the observance or performance of any of the conditions and
restrictions (if any) imposed on or in connection therewith;


 


4.4.4        the entry by the Purchaser
into, and performance by the Purchaser of the transactions contemplated by, the
Transaction Documents do not and will not conflict with:  (i) any United States Federal or
California State utility law or regulation or any official or judicial order
applicable to the Purchaser; (ii) the constitutional documents of the
Purchaser; or (iii) any material agreement or document to which the
Purchaser is a party or by which the Purchaser or any of its properties is
bound; and


 


4.4.5        no litigation or other
proceeding before any court, administrative agency or government body is
pending or, to the best of the Purchaser’s knowledge threatened against the
Purchaser, the outcome of which could materially adversely affect the validity
of the Transaction Documents or the rights, benefits or interest of the Seller
conveyed hereunder.


 


4.5         Fee Disclaimer


 


Each
of the Purchaser and the Seller hereby represents and warrants to the other
that it has not paid, agreed to pay or caused to be paid directly or indirectly
in any form, any commission, percentage, contingent fee, brokerage or other
similar payments of any kind, in connection with the consummation of the
transactions contemplated by the Transaction Documents to any person (other
than fees payable to the Representative or the Purchaser’s or the Seller’s
technical or legal advisers (as the case may be).  Each of the Purchaser and the Seller agrees
to indemnify and hold the other harmless from and against any and all claims,
suits, damages, costs and expenses (including, but not limited to reasonable
attorneys’ fees) asserted by any agent, broker or other third party for any
commission or compensation of any nature whatsoever based upon the Transaction
Documents or the Aircraft, if such claim, suit, damage, costs or expense arises
out of any breach by the indemnifying party, its employees or agents of this
Clause 4.5.


 


4.6         Repetition of Representations and Warranties


 


Each
representation set out in Clauses 4.1 (Representations and
Warranties of the Seller), 4.4 (Representations and
Warranties of the Purchaser) and 4.5 (Fee
Disclaimer) shall be deemed to be repeated on the Delivery Date and
the Redelivery Date by reference to the facts and circumstances existing on
such date and shall survive the execution hereof and the Delivery and
Redelivery of the Aircraft.


 


14

















 


5.             CONDITIONS PRECEDENT


 


5.1            Purchaser’s Conditions Precedent


 


5.1.1        The obligations of the
Purchaser under this Agreement are subject to the following conditions
precedent (the “Purchaser’s Conditions Precedent”)
being fulfilled to the satisfaction of, or waived in writing by, the Purchaser:


 


(a)       the representations and
warranties on the part of the Seller contained in this Agreement shall be true
and accurate on and as of the Delivery Date as if made and repeated on and as
of the Delivery Date with reference to the facts and circumstances existing as
of the Delivery Date;


 


(b)       no Total Loss of the
Aircraft shall have occurred;


 


(c)       the Transaction Documents
shall have been executed and delivered by the parties thereto (other than the
Purchaser);


 


(d)       [Intentionally left blank];


 


(e)       evidence of the issue of
each approval, license and consent which may be required in connection with the
performance by the Seller of all its obligations under the Transaction
Documents;


 


(f)        the Seller shall have made
the Aircraft available for Delivery at the Delivery Location on the Delivery
Date,


 


(g)       on the Delivery Date the
Aircraft shall be in construction configuration and conform in all material
respects to the Delivery Conditions except as otherwise set forth in writing in
accordance with Clause 3.4;


 


(h)       the Aircraft has been duly
certified by the FAA as to type and has a current, valid FAA airworthiness
certificate;


 


(i)        at the time of Delivery,
Daugherty, Fowler, Peregrin, Haught & Jenson, special FAA counsel to
Purchaser, shall have confirmed that such counsel is forthwith furnishing Purchaser
an opinion addressed to Purchaser to the effect that (i) the FAA Bill of
Sale and FAA Application for Registration with respect to the Aircraft have
been duly filed with the FAA; (ii) legal title to the Aircraft is vested
in Purchaser, free and clear of all Encumbrances of record; and (iii) the
transfer of title to the Aircraft has been registered on the International
Registry in accordance with the Cape Town Convention;


 


15

















 


(j)        no legal or governmental action,
suit or proceeding shall have been instituted or threatened before any court,
administrative agency or tribunal, nor shall any order, judgment or decree have
been issued or proposed to be issued by any court, administrative agency or
tribunal to set aside, restrain, enjoin or prevent the consummation of this
Agreement, any Transaction Document or the transactions contemplated hereby or
thereby;


 


If
any of the Purchaser’s Conditions Precedent remain outstanding on the
Termination Date and are not waived or deferred in writing by the Purchaser,
the Purchaser shall be entitled at any time thereafter to terminate its
obligation to purchase the Aircraft from the Seller by notice, whereupon
neither party shall have any further obligation or liability hereunder, other
than the obligation of the Seller to return the Initial Payment and any other
of the payments received pursuant to Clause 2.4 of this Agreement to the
Purchaser.


 


5.2            Seller’s Conditions Precedent


 


5.2.1        The obligations of the
Seller under this Agreement are subject to the following conditions precedent
(the “Seller’s Conditions Precedent”) being
fulfilled to the satisfaction of, or waived in writing by, the Seller:


 


(a)           the representations and
warranties on the part of the Purchaser contained in this Agreement shall be
true and accurate on and as of the Delivery Date as if made and repeated on and
as of the Delivery Date with reference to the facts and circumstances existing
as of the Delivery Date;


 


(b)           [Intentionally left blank];


 


(c)           evidence of the issue of
each approval, license and consent which may be required in connection with the
performance by the Purchaser of all its obligations under the Transaction
Documents;


 


(d)           the Transaction Documents
shall have been executed and delivered by the parties thereto (other than the
Seller);


 


(e)           the insurance certificates
and brokers letter of undertaking required by Clause 8.2.3 shall have been
delivered to Seller;


 


(f)            the Seller shall have
received the Final Payment on the Delivery Date.


 


If
any of the Seller’s Conditions Precedent remain outstanding on the Termination
Date and are not waived or deferred in writing by the Seller, the Seller shall
be entitled at any time thereafter to terminate its obligation to sell the
Aircraft to the Purchaser by notice to the Purchaser, whereupon neither party
shall have any further obligation or liability hereunder, except the Seller
shall retain the Initial Payment as liquidated damages and not as a penalty


 


16














 


and
refund to the Purchaser any other payments received pursuant to Clause 2.4 of
this Agreement.


 


6.                                      FEES AND EXPENSES


 


Each
of the Purchaser and the Seller shall be responsible for its own costs and
expenses, including legal fees, incurred by each of them in connection with the
negotiation, preparation and execution of the Transaction Documents, regardless
of whether the Aircraft, the Spares or the AFCS are in fact sold by the Seller
to the Purchaser.


 


7.                                      REGISTRATION FEES


 


The
Purchaser shall be responsible at its own expense for obtaining and maintaining
any governmental and other licences, approvals, consents, certificates,
exemptions, registrations and filings necessary for the ownership, leasing,
registration, maintenance, use or operation of the Aircraft on and after
Delivery.  Seller and Purchaser will, at
Purchaser’s expense, execute and file documents with the FAA and register an
international interest pursuant to the Convention on International Interests in
Mobile Equipment and the Protocol to the Convention on International Interests
in Mobile Equipment on Matters Specific to Aircraft Equipment, both signed in
Cape Town, South Africa on November 16, 2001, together with the
Regulations for the International Registry, the International Registry Procedures,
the International Registry Website terms and conditions, and all other rules,
amendments, supplements and revisions thereof (collectively, the “Cape Town Convention”) with respect to the sale of the
Aircraft hereunder.


 


8.                                      INDEMNITIES


 


8.1                           Indemnities


 


Purchaser
shall indemnify, protect, save and keep harmless Seller and each of its
respective successors, assigns, affiliates, and Seller’s and each of their
respective officers, directors, shareholders, agents, employees, members,
partners, contractors subcontractors, and suppliers, (collectively, the “Seller Indemnitees”) for, from and against, and on written
demand shall pay or reimburse each Seller Indemnitee for the payment of, any
and all losses, costs, expenses, fees (including legal fees and disbursements),
payments, demands, liabilities, claims, actions, proceedings, penalties, fines,
damages and judgments of any kind and nature whatsoever (other than Taxes)
(collectively, “Losses”), imposed on, incurred by
or asserted against any Seller Indemnitee from and after the Delivery on the
Delivery Date to the extent relating to or arising directly or indirectly out
of or in any way connected with (i) the breach by Purchaser of any
representation or warranty hereunder or (ii) the ownership, possession,
maintenance, modification, control, use, operation, sale, leasing or other
application or disposition of the Spares, the Aircraft, the AFCS, any Engine or
any Part or component thereof or interest therein, whether by Purchaser or
any other person or party; provided, however, that such Losses are not
attributable to (a) the gross negligence or


 


17

















 


wilful
misconduct of a Seller Indemnitee or (b) the breach by Seller or any
Seller Indemnitee of any express warranty, representation or obligation
hereunder or under any other Transaction Document.  Purchaser’s indemnification obligations under
this Agreement, except for those arising from a breach by Seller of any express
warranty, representation or obligation hereunder or under any other Transaction
Document, shall solely be satisfied by the insurance required to be maintained
under Clause 8.2 hereof, to the extent Purchaser has complied with its
obligations thereunder.  If a claim is
made against a Seller Indemnitee for any such Losses, the relevant Seller
Indemnitee shall promptly notify Purchaser upon receiving notice of such
claim.  If requested by Purchaser in
writing, such Seller Indemnitee will, at Purchaser’s expense, take such action
as Purchaser or the insurer defending such claim may reasonably direct with
respect to such claim.  Notwithstanding
any other provision of this Agreement, the obligations of parties under this
Clause 8.1 will survive the Delivery of the Aircraft and the Redelivery of the
AFCS and the Spares.


 


Taxes


 


8.1.1                        Each of the
Seller and the Purchaser shall co-operate and use reasonable efforts to avoid
or minimize any and all Transfer Taxes imposed on or arising out of the sale of
the Aircraft to the Purchaser by the Seller or otherwise imposed on the
transactions contemplated by the Transaction Documents.  Notwithstanding the foregoing, any and all
Transfer Taxes arising out of the sale and/or delivery of the Aircraft or any Part thereof
shall be the sole responsibility and liability of the Purchaser.


 


8.1.2                        The Purchaser
will indemnify and hold Seller harmless on demand from and against any and all
Transfer Taxes levied or imposed against or upon the Seller or the Purchaser
and relating to or attributable to the Purchaser, this Agreement or the sale
and/or purchase of the Aircraft pursuant to this Agreement, and any Transfer
Taxes of any kind whatsoever assessed against the Seller which are attributable
to any payment made by the Purchaser pursuant to this Clause 8.1.2 (expressly
excluding any such Tax based on gross or net income, profits or revenues, franchise or doing business Taxes of
Seller).


 


8.1.3                        If a claim is
made against the Seller for any Transfer Taxes required to be indemnified by
Purchaser in Clause 8.1.1, the Seller shall promptly notify the Purchaser.  Following receipt of such notice or upon
receipt of any claim made by a taxing authority against the Purchaser directly,
the Purchaser shall promptly pay and discharge when due any and all Transfer
Taxes, the responsibility and liability for which is assumed by the Purchaser
pursuant to the provisions of Clause 8.1.1 and/or Clause 8.1.2.


 


18

















 


8.2                           Insurance


 


8.2.1                        Subject to the
express provisions of the Crew Provisioning Agreement, the Purchaser shall, at
no expense to the Seller, maintain or procure following the Delivery Date
liability insurance (including war risks and allied perils, including
passengers and third parties, cargo and baggage, products liability and
property damage) in respect of the Aircraft including cover for the indemnities
in Clause 8.1 in an amount of not less than [* * *] in respect of any one
accident and/or occurrence (but in the aggregate in respect of products and
personal injury liability).


 


8.2.2                        The insurance
policies in respect of such insurance shall be in form and substance reasonably
satisfactory to the Seller and shall include provisions (to the extent
commercially available) whereby:


 


(a)                                  the Seller
Indemnitees are named as additional named insureds for their respective rights
and interests;


 


(b)                                 the insurers
under any hull or liability policy for the Aircraft shall waive all rights of
subrogation against the Seller Indemnitee to the extent of the indemnity under
Clause 8.1;


 


(c)                                  in respect of the
interests of each Seller Indemnitee in such policies, the insurance shall not
be invalidated by any act or omission (including misrepresentation and
non-disclosure) of the Purchaser or any other person (other than as to any such
Seller Indemnitee) which results in a breach of any term, condition, warranty
or other provision of such policies;


 


(d)                                 none of the
Seller Indemnitees shall have responsibility for the payment of premiums or any
other amounts payable under such policies;


 


(e)                                  if such
insurance is cancelled or allowed to lapse for any reason whatsoever, or if any
material change is made in such insurance that adversely affects the interest
of any Seller Indemnitee, such cancellation, lapse or change shall not be
effective as to any Seller Indemnitee for 30 days (or 7 days or such
other period as is then customarily obtainable in the industry in the case of
any war and allied perils liability coverage) after giving notice from such
insurers or the Purchaser’s appointed insurance broker to the Seller ;


 


(f)                                    be primary
without right of contribution from any other insurance maintained by any Seller
Indemnitee;


 


19

















 


(g)                                 provide a
severability of interests provision applicable to each insured and Seller Indemnitee
under the policy such that all of the provisions of the insurance required
hereunder, except the limits of liability, shall operate in the same manner as
if there were a separate policy covering each insured and Seller Indemnitee;


 


(h)                                 waive any right
of the insurers to any setoff, counterclaim or other deduction against the
Seller Indemnitees; and


 


(i)                                     provide for
worldwide coverage, subject to such limitations and exclusions as may be
customary, provided, such limitations and exclusions are not applicable
to the territories where the Aircraft is operated.


 


8.2.3                        On or before
the Delivery Date and at each renewal of the insurances the Purchaser shall
deliver to the Seller originals of each insurance certificate and broker’s
letter of undertaking in relation to the Aircraft confirming that the Purchaser
has complied with its obligations hereunder.


 


8.2.4                        So long as
Seller is required to provide insurance under Clause 6.2 of the Crew
Provisioning Agreement, the obligations of Purchaser under this Clause 8.2
shall be deemed complied with by Purchaser so long as the Purchaser has
complied with its obligation to pay for the insurance procured by the Seller
under Clause 6.2.1 of the Crew Provisioning Agreement.


 


9.                                      ASSIGNMENTS


 


Neither
party shall assign or transfer its rights, obligations or interests hereunder
without the prior written consent of the other, such consent not to be
unreasonably withheld.  The terms “Purchaser” and “Seller” when
used herein, shall be deemed to include their respective successors and
permitted assigns.  The Purchaser may, at
its sole cost and expense, assign its rights by way of security to a third
party provider of financing for the purchase described herein provided,
however, that any such assignment shall in no way decrease the rights or
increase the obligations of Seller hereunder.


 


10.                               AMENDMENTS


 


Neither
this Agreement nor any provision hereof (including, for the avoidance of doubt,
this Clause 10) may be amended, supplemented, changed, waived, discharged or
terminated orally, but only by a statement in writing signed by each of Seller
and the Purchaser.  For avoidance of
doubt, the Representative does not have the authority to enter into any
amendments of this Agreement or any Exhibit or Schedule hereto on
behalf of the Purchaser.  Only an
authorized officer of the Purchaser may sign any such amendment on behalf of
the Purchaser.


 


20

















 


11.                               NOTICES


 


11.1                     Notices


 


All
notices to be given under this Agreement shall be in writing and either sent by
a nationally recognized overnight courier service, in which case notice shall
be deemed delivered as of the date shown on the courier’s delivery receipt; or
sent by telecopy during business hours of the recipient, with a copy of the
notice also deposited in the United States mail (postage prepaid) the same
business day, in which case notice shall be deemed delivered on transmittal by
telecopier provided that a transmission report is generated reflecting the
accurate transmission of the notices, or sent by United States mail, postage
prepaid, in which case notice shall be deemed delivered as of two business days
after deposit in the mail, addressed as follows:


 


	
   

  	
  To
  the Purchaser:

  	
  SAN
  DIEGO GAS & ELECTRIC COMPANY

  
	
   

  	
   

  	
  8315
  Century Park Court, CP22D

  
	
   

  	
   

  	
  San
  Diego, CA 92123

  
	
   

  	
   

  	
   

  
	
   

  	
  Facsimile:

  	
  [*
  * *]

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Director
  of Supply Management

  



 


11.1.1  to the
Seller to:


 


	
   

  	
  Address:

  	
  ERICKSON
  AIR-CRANE INCORPORATED

  
	
   

  	
   

  	
  5550
  SW Macadam Avenue, Suite 200

  
	
   

  	
   

  	
  Portland,
  OR 97239

  
	
   

  	
   

  	
   

  
	
   

  	
  Facsimile:

  	
  [*
  * *]

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Vice
  President-General Counsel

  



 


or
to such other address, email or facsimile number as is notified by one party to
the other under this Agreement.


 


11.2                     English Language


 


All
notices, requests, demands, or other communication under this Agreement, unless
made in the English language, shall (unless expressly provided to the contrary)
be accompanied by an English translation and the English version of all such
documents, notices, communications, evidence, reports, opinions and other
documents shall, to the extent permitted by applicable law, prevail in the
event of any conflict with the non English version thereof.


 


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12.                               MISCELLANEOUS


 


12.1                     Entire Agreement


 


This
Agreement contains the entire agreement between the Seller and the Purchaser
relating to the purchase of the Aircraft, and the terms and conditions of this
Agreement shall not be varied otherwise than by an instrument in writing of
even date herewith or subsequent hereto executed by or on behalf of the Seller
and the Purchaser.


 


12.2                     Delay in Exercising Rights


 


No
failure or delay on the part of either party in exercising any right, power or
remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise by either party of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.  The remedies
provided in this Agreement are cumulative and are in addition to any remedies
provided by law.


 


12.3                     Further Assurance


 


Each
party shall from time to time do and perform such other and further acts and
execute and deliver any and all such further instruments as may be required by
law or reasonably requested in writing by the other to establish, maintain and
protect the rights and remedies of the other and to carry out and effect the
intent and purposes of this Agreement.


 


12.4                     Rights at Law


 


Nothing
contained in this Agreement shall be construed to limit in any way any right,
power, remedy or privilege of the parties hereunder or now or hereafter
existing at law or in equity.  Each and
every right, power, remedy and privilege of each party under this
Agreement:  (1) shall be in addition
to and not in limitation of, or in substitution for, any other right, power,
remedy or privilege under this Agreement or at law or in equity; (ii) may
be exercised from time to time or simultaneously and as often and in such order
as may be deemed expedient by it; and (iii) shall be cumulative and not
mutually exclusive and the exercise of one shall not be deemed a waiver of the
right to exercise any other.


 


12.5                     Counterparts


 


This
Agreement may be executed in any number of counterparts and by each of the
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original, and all of which, taken together, shall constitute
one and the same instrument.


 


12.6                     Severability


 


If
any provision of this Agreement shall become invalid, illegal or unenforceable
in any respect under any law, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired.


 


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12.7                     Data and Confidentiality


 


12.7.1                  All Data is proprietary to
and shall remain the property of Seller. 
All Data is disclosed to Purchaser in confidence, and shall neither (1) be
used by Purchaser or be furnished by Purchaser to any other person, firm or
corporation for the design or manufacture of any products, articles,
compositions of matter, or processes, nor (2) be permitted out of
Purchaser’s possession, or divulged to any other person or entity except the
Representative and as otherwise agreed by Seller in writing, nor (3) be
used in the creation, manufacture, development or derivation of any
modifications, spare parts, design or configuration changes, or to obtain FAA
or any other government or regulatory approval of any of the foregoing.  If consent is given, in writing by Seller,
for reproduction in whole or in part, any existing notice or legend shall
appear in any such reproduction.  Nothing
in this Clause shall preclude Purchaser from using Data for the control,
repair, operation, use, sale, leasing, overhaul or maintenance by Purchaser and
the Representative of the Aircraft. 
Purchaser shall be responsible for and take all steps necessary to
insure compliance by its employees and agents with this Clause.  Nothing in this Agreement shall convey to
Purchaser the right to use Data to create, manufacture, develop, or cause the
reproduction of any aircraft, spare part, or part or component thereof, of a
design identical or similar to that of the Aircraft, the Spares and the AFCS
purchased under the Transaction Documents, or give to Purchaser a license under
any patents or rights owned or controlled by Purchaser.


 


12.7.2                  This Agreement contains
information specifically for Seller and Purchaser, and nothing herein contained
shall be divulged by Seller or Purchaser, nor shall any Data provided by Seller
hereunder be divulged by Purchaser, to any third party without the prior
written consent of the other party hereto; except (i) to the extent
required by law or to enforce this Agreement; and (ii) to the extent
necessary for disclosure to both parties’ respective  regulators,
insurers, accountants, legal counsel, technical advisors, the Representative or
other professional advisors for whom each party hereto shall be responsible
for, and take all steps necessary to insure, compliance by those persons with
this Clause.


 


12.8                           Prohibition on Non-Public Information Sharing


 


12.8.1                  The Seller understands that
the California Public Utilities Commission (“CPUC”) and the Federal Energy
Regulatory Commission (“FERC”) have issued certain Affiliate Rules, including,
without limitation, CPUC Decision (“D”)
06-12-029; FERC Order 697 (18 C.F.R. Section 35.39(g)); and FERC Order
No. 2004.  The Seller and its
permitted


 


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subcontractors may be in
receipt of or have access to non-public information which is subject to the
foregoing rules.  In accordance with
those rules, Seller understands and agrees, and shall cause its permitted
subcontractors to understand and agree not to disclose or allow access to:  (1) any non-public information of the
Purchaser and/or Southern California Gas Company with any entity affiliated
with such utilities by virtue of substantial, even if not majority, direct or
indirect ownership other than the ultimate parent company of both such
entities, Sempra Energy (each, a “Sempra Subsidiary”); (2) any non-public
electric or gas marketing, procurement or transmission-related information of
any Sempra Subsidiary with any other Sempra Subsidiary; (3) any non-public
transmission-related information of any Sempra Subsidiary’s transmission
operations with persons participating in the performance of the same Sempra
Subsidiary’s or any other Sempra Subsidiary’s electric and/or gas procurement,
marketing or other merchant functions; or (4) any gas procurement,
marketing or merchant information associated with Southern California Gas
Company’s merchant function with persons participating in the performance of
Southern California Gas Company’s and/or the Purchaser’s gas operations
function.


 


12.8.2                  Seller and permitted
subcontractors understand and agree that they may be required to complete
training regarding the foregoing at the Purchaser’s sole discretion.


 


13.                               GOVERNING LAW


 


THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF OREGON, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW.


 


14.                               JURISDICTION


 


14.1                     Oregon Courts


 


Each
party to this Agreement irrevocably agrees that any legal action or proceedings
in connection with this Agreement which is expressed to be governed by Oregon
law, against either party or any of its assets may be brought in any court
located in Multnomah County, Oregon, which shall have jurisdiction to settle
any disputes arising out of or in connection with this Agreement and each party
hereby irrevocably and unconditionally submits to the non-exclusive
jurisdiction of any State or Federal court sitting in Multnomah County


 


14.2                     Non-exclusive Submission


 


The
submission to jurisdiction referred to in Clause 14.1 (Oregon
Courts) shall not (and shall not be construed so as to) limit the
rights of either party to take proceedings against the other party in the
courts of any other competent jurisdiction, nor shall the taking of


 


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proceedings
in any one or more jurisdictions preclude the taking of proceedings in any
other jurisdiction, whether concurrently or not.


 


14.3                     Inconvenient Forum


 


Each
party to this Agreement irrevocably waives any objection it may now or
hereafter have to the laying of venue of any action or proceeding in the courts
located in Multnomah County and any claim it may now or hereafter have that any
action or proceeding has been brought in an inconvenient forum.


 


14.4                     Waiver of Immunity


 


Each
party to this Agreement agrees that in any legal action or proceedings against
it or its assets in connection with this Agreement no immunity from such legal
action or proceedings (which shall include, without limitation, suit,
attachment prior to judgement, other attachment, the obtaining of judgement,
execution or other enforcement) shall be claimed by or on behalf of it or with
respect to its assets, and each party to this Agreement irrevocably waives any
such right of immunity which it or its assets now have or may hereafter acquire
or which may be attributed to it or its assets and consents generally in
respect of any such legal action or proceedings to the giving of any relief or
the issue of any process in connection with such action or proceedings
including, without limitation, the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use) of any order of
judgement which may be made or given in such action or proceedings.


 


14.5                     Waiver of Jury Trial


 


Each
of the Parties to this Agreement irrevocably waives trial by jury in any action
or proceeding with respect to this Agreement or any of the Transaction
Documents.


 


14.6                     Interpretation


 


No
Clause or other provision of this Agreement shall be interpreted against the
interest of any party hereto for the reason that such party drafted the Clause
or other provision.


 


14.7                     Government Authorization, Export Shipment


 


Purchaser
shall be responsible for obtaining any required export licenses and import
licenses or any other required governmental authorization and shall be responsible
for complying with all applicable U.S. and foreign government licensing
and reporting requirements for its ownership, use, operation, maintenance,
sale, leasing and control of the Aircraft from and after Delivery on the
Delivery Date, excluding any such licensing and reporting requirements
applicable to Seller in its capacity as operator of the Aircraft pursuant to
the Crew Provisioning Agreement.


 


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15.                               AGREEMENT TO LEASE REPLACEMENT AIRCRAFT


 


Notwithstanding
anything to the contrary contained in this Agreement, in the case the
Redelivery Date of the Aircraft is delayed beyond June 20 2010, then the
Seller agrees that it will provide the Purchaser with the use of a comparable
helicopter which can substantially perform all tasks for which the Aircraft is
being designed and remanufactured at no costs to the Purchaser, other than the
Fees payable by the Purchaser under the Crew Provisioning Agreement and any
other costs and expenses payable by the Purchaser thereunder (including,
without limitation, the costs and expenses of the insurance policies pursuant
to Clause 6.2.1 (Aviation Insurance) thereof) from
June 20, 2010 until the Redelivery Date.


 


16.                               DIVERSE BUSINESS ENTERPRISE GOAL


 


It
is the policy of Purchaser to provide maximum opportunity for women, minority
and service disabled veteran business enterprises (“Diverse Business
Enterprises” or “DBE”) to participate in the performance of contracts.  As part of Purchaser’s efforts toward
achieving Purchaser’s thirty percent DBE goal, Seller shall diligently and in
good faith cooperate with Purchaser in identifying and utilizing qualified DBE
subcontractors and suppliers for work performed for Purchaser.  Each party shall be responsible for its own
costs incurred in connection with this clause.


 


IN
WITNESS WHEREOF the duly authorised representatives of the parties
hereto have executed this Agreement and the same has been delivered and
rendered effective on the day and year first hereinbefore written.


 


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SCHEDULE 1


FORM OF BILL OF SALE


 


For
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, ERICKSON AIR-CRANE INCORPORATED
(the “Seller”), owner of the full legal and
beneficial title to the aircraft, engines, equipment and documents described
below (hereinafter referred to as the “Aircraft”):


 


1.                                       one (1) Erickson
S-64F aircraft bearing manufacturer’s serial number 64095;


 


2.                                       two (2) PW[          ]
engines whose serial numbers are
[          ] and
[          ] respectively;


 


3.                                       all equipment,
accessories and parts belonging to, installed in or appurtenant to such
aircraft or engines; and


 


4.                                       the Aircraft
Documentation,


 


does
hereby sell, grant, transfer and deliver all its right, title and interest in
and to the Aircraft free and clear of all Encumbrances other than those created
or granted by, or through, Purchaser, to SAN DIEGO GAS & ELECTRIC
COMPANY (the “Purchaser”), under that certain
Aircraft Purchase Agreement dated as of       
May 2009 and made between Seller and Purchaser (the “Sale
Agreement”), to have and to hold the Aircraft forever.  The Seller hereby warrants to the Purchaser,
and its successors and assigns, that it is the legal and beneficial owner of
the Aircraft and that there is hereby conveyed to the Purchaser good and
marketable title to the Aircraft free and clear of any Encumbrances other than
the Encumbrances granted or created by, or through, Purchaser.


 


The
terms “Aircraft Documentation” and “Encumbrances” shall have the same meanings
in this Bill of Sale as in the Sale Agreement.


 


The
Aircraft is sold AS IS and WHERE IS and under all the terms and conditions set
forth in the Sale Agreement.


 


Except
as stated in Clause 4.1 (Representations and
Warranties of the Seller), Clause 4.2 (Limited
Warranties) and 4.6 (Repetition of
Representations and Warranties) of the Sale Agreement and in this
Bill of Sale, to the extent permitted by applicable law, no representations,
guarantees or warranties are given by Seller, express or implied of any kind,
arising by law or otherwise.


 


This
Bill of Sale and all matters arising from or connected with it are governed by
the laws of the State of Oregon without reference to principles of conflicts of
law.


 


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IN
WITNESS whereof, Seller has caused this Bill of Sale to be duly executed as of
this [   ] day of
[            ],
2009


 


 


	
  ERICKSON
  AIR-CRANE INCORPORATED

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


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SCHEDULE 2


 


S-64F HELICOPTER


QTY 1


 


[* * *]


 


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[* * *]


 


[* * *]


 


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[* * *]


 


[* * *]


 


[* * *]


 


[* * *]


 


[* * *]


 


[* * *]


 


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SCHEDULE 3


 


Acceptance Certificate


 


Capitalized
terms herein have the same meaning as in that certain Aircraft Purchase
Agreement dated as of May     , 2009 (the “Agreement”),
by and between Erickson Air-Crane Incorporated (“Seller”) and San Diego
Gas & Electric Company (“Purchaser”).


 


Pursuant
to the Agreement the undersigned hereby accepts delivery of the Aircraft at
    :     (AM/PM) on
                    ,
          , 2009 in Central
Point, Oregon and agrees and confirms that the Aircraft has been delivered to
and accepted by Purchaser in accordance with all terms and conditions set forth
in the Agreement.


 


Executed
by a duly authorized representative of Purchaser this
         day of
                  ,
2009.


 


 


	
   

  	
  SAN
  DIEGO GAS & ELECTRIC COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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EXECUTION PAGE


 


	
  The
  Purchaser

  	
   

  
	
   

  	
   

  
	
  for
  and on behalf of

  	
   

  
	
  SAN
  DIEGO GAS & ELECTRIC COMPANY

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
  /s/
  J. Chris Baker

  	
   

  
	
   

  	
   

  
	
  Name:
  J. Chris Baker

  	
   

  
	
   

  	
   

  
	
  Title:
  SVP & CIO - SEU Shared Services

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  The
  Seller

  	
   

  
	
   

  	
   

  
	
  for
  and on behalf of

  	
   

  
	
  ERICKSON
  AIR-CRANE INCORPORATED

  	
   

  
	
   

  	
   

  
	
  Signature:

  	
  /s/
  Charles E. Ryan

  	
   

  
	
   

  	
   

  
	
  Name:
  Charles E. Ryan

  	
   

  
	
   

  	
   

  
	
  Title:
  CFO

  	
   

  



 


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