Exhibit 10.12


 






 


SALE
AND PURCHASE AGREEMENT


 






 


 


regarding
the acquisition of


all
shares in and certain loans and facilities granted to


 


 


debis AirFinance B.V.


 

















 


Table
of Contents


 


	
  Defined Terms

  	
   

  
	
  List of Exhibits

  	
   

  
	
  List of Disclosure Schedules

  	
   

  
	
  RECITALS

  	
   

  
	
  1.

  	
  Current Status

  	
   

  
	
  1.1

  	
  debis
  AirFinance B.V.

  	
   

  
	
  1.2

  	
  Subsidiaries
  and Participations of the Company

  	
   

  
	
  1.3

  	
  Loans
  and Facilities granted to the Company

  	
   

  
	
  2.

  	
  Sale and Assignment

  	
   

  
	
  2.1

  	
  Sale
  and Purchase of the Shares

  	
   

  
	
  2.2

  	
  Sale
  and Purchase of the SHL-Loans

  	
   

  
	
  2.3

  	
  Transfer
  and Assignment

  	
   

  
	
  3.

  	
  Purchase Price

  	
   

  
	
  3.1

  	
  Purchase
  Price Amount

  	
   

  
	
  3.2

  	
  Payments
  to the Sellers

  	
   

  
	
  3.3

  	
  The
  Purchaser’s Bank Account

  	
   

  
	
  3.4

  	
  Terms
  of Payments

  	
   

  
	
  4.

  	
  Closing

  	
   

  
	
  4.1

  	
  Dates

  	
   

  
	
  4.2

  	
  Closing
  Conditions

  	
   

  
	
  4.3

  	
  Fulfillment
  of Closing Conditions; Merger Control Filing

  	
   

  
	
  4.4

  	
  Waiver
  of Closing Conditions

  	
   

  
	
  4.5

  	
  Closing
  Events

  	
   

  
	
  4.6

  	
  Waiver
  of Closing Events

  	
   

  
	
  4.7

  	
  Closing
  Confirmation

  	
   

  
	
  4.8

  	
  Right
  to Withdraw

  	
   

  
	
  5.

  	
  Guarantees of the Sellers

  	
   

  
	
  5.1

  	
  Independent
  Guarantees

  	
   

  
	
  5.2

  	
  Sellers’
  Knowledge

  	
   

  
	
  5.3

  	
  Due
  Diligence

  	
   

  
	
  6.

  	
  Remedies

  	
   

  
	
  6.1

  	
  Breach

  	
   

  
	
  6.2

  	
  Cooperation
  of the Parties

  	
   

  
	
  6.3

  	
  Third
  Party Claims

  	
   

  
	
  7.

  	
  Limitations of Liability

  	
   

  
	
  7.1

  	
  Liability
  Cap

  	
   

  
	
  7.2

  	
  Recoverable
  Claims; Deductible

  	
   

  
	
  7.3

  	
  No
  Double Dip

  	
   

  
	
  7.4

  	
  Exclusion
  of Liability

  	
   

  
	
  7.5

  	
  Statute
  of Limitation

  	
   

  
	
  7.6

  	
  Suspension
  and Restart

  	
   

  
	
  7.7

  	
  Remedies

  	
   

  
	
  8.

  	
  Other Covenants

  	
   

  
	
  8.1

  	
  Purchaser’s
  Access

  	
   

  
	
  8.2

  	
  Corporate
  Matters; Disposals and Other Transactions

  	
   

  
	
  8.3

  	
  No
  Solicitation

  	
   

  
	
  8.4

  	
  Interim
  Management

  	
   

  



 


2

















 


	
  8.5

  	
  Insurance
  Coverage

  	
   

  
	
  8.6

  	
  Use
  of Certain Names and Designations

  	
   

  
	
  8.7

  	
  Amounts
  Drawn Under the Revolving Facility

  	
   

  
	
  8.8

  	
  Further
  Assurance

  	
   

  
	
  8.9

  	
  Covenants relating to the Waivers

  	
   

  
	
  8.10

  	
  Suspension
  of implementation of portions of the collateral package

  	
   

  
	
  9.

  	
  Guarantees of the Purchaser

  	
   

  
	
  9.1

  	
  Independent
  Guarantee

  	
   

  
	
  9.2

  	
  Indemnity

  	
   

  
	
  10.

  	
  [Reserved]

  	
   

  
	
  11.

  	
  Non Solicitation

  	
   

  
	
  12.

  	
  Public Announcements and Confidentiality

  	
   

  
	
  12.1

  	
  Public
  Announcement

  	
   

  
	
  12.2

  	
  Confidentiality
  Agreement

  	
   

  
	
  13.

  	
  Notices

  	
   

  
	
  14.

  	
  Miscellaneous

  	
   

  
	
  14.1

  	
  Costs

  	
   

  
	
  14.2

  	
  Entire
  Agreement

  	
   

  
	
  14.3

  	
  Amendments

  	
   

  
	
  14.4

  	
  Headings;
  German or Dutch Terms

  	
   

  
	
  14.5

  	
  Assignment;
  Set-Off; Withholding

  	
   

  
	
  14.6

  	
  Foreign
  Currencies

  	
   

  
	
  14.7

  	
  Calculation
  of Interest

  	
   

  
	
  14.8

  	
  Governing
  Law

  	
   

  
	
  14.9

  	
  Arbitration

  	
   

  
	
  14.10

  	
  Severability

  	
   

  



 


3

















 


SALE
AND PURCHASE AGREEMENT


 


by and between


 


1.                                       DaimlerChrysler Services AG, Eichhornstraße 3,
10875 Berlin, Germany,


 


- “DC Services” -


 


2.                                       DaimlerChrysler Aerospace AG,
Willy-Messerschmitt-Straße, 85521 Ottobrunn, Germany,


 


- “DC Aerospace” -


 


3.                                       DaimlerChrysler AG, Epplestraße 225, 70567
Stuttgart, Germany,


 


- “DC AG” -


 


4.                                       Bayerische Hypo- und Vereinsbank AG,
Arabellastraße 14, 81925 Munich, Germany,


 


- “HVB” -


 


5.                                       HVB Banque Luxembourg SA, 4, rue Alphonse Weicker,
2721 Luxembourg, Luxembourg


 


- “HVB Luxembourg” -


 


6.                                       Bayerische Landesbank, Brienner Str. 18,
80333 Munich, Germany,


 


- “BLB” -


 


7.                                       BLB Beteiligungsgesellschaft Beta mbH, Brienner
Str. 18, 80333 Munich, Germany,


 


“BLB-Beteiligung”


 


8.                                       Dresdner Bank AG, Platz der Einheit 2, 60301
Frankfurt am Main, Germany,


 


“Dresdner Bank”


 


9.                                       DZ BANK AG Deutsche
Zentral-Genossenschaftsbank, Frankfurt am Main, Platz der Republik, 60265
Frankfurt am Main, Germany,


 


- “DZ” -


 


10.                                 DZ Beteiligungsgesellschaft mbH Nr. 6, Platz der
Republik, 60325 Frankfurt am Main, Germany,


 


- “DZ Beteiligung” -


 


4

















 


11.                                 KfW, Palmengartenstr. 5-9, 60325 Frankfurt
am Main, Germany,


 


- “KfW” -


 


- the parties referred to in 1. through 11., collectively, the “Sellers”


and each of them individually a “Seller”
-,


 


and


 


12.                                 FERN S.à r.l., c/o Cerberus Capital Management, L.P., 299 Park
Avenue, New York, New York 10171, U.S.A.,


 


- “Purchaser” -


 


- the Sellers and the Purchaser, collectively, the “Parties” or each of them


individually a “Party” -


 


5

















 


Defined Terms


 


When used in this Agreement, the following
terms shall have the following meanings:


 


Affiliate means “verbundene Unternehmen”
as such term is defined in Section 15 of the German Stock Corporation Act
(Aktiengesetz – AktG);


 


Agreement shall have the meaning as defined in Recitals (A);


 


Aircraft means each of the Owned Aircraft, Structured Finance Aircraft and
Leased-in Aircraft specified in the Aircraft Disclosure Schedule;


 


Aircraft Assets means the Aircraft, the Engines, any spare parts in respect thereof,
and any other assets that are specifically used in connection with the
Aircraft, the Engines or the spare parts;


 


Aircraft Disclosure Schedule means Schedule 5(a) to Exhibit 5.1 setting out as of April 1,
2005, with respect to the Company and each dAF-Consolidated Company, the Owned
Aircraft, the Structured Finance Aircraft and the Leased-in Aircraft and
specifying (i) with respect to each Aircraft, the manufacturer, model,
registration marks, manufacturer’s serial number and year of manufacture, (ii) specifying
with respect to each Engine, the manufacturer and model, (iii) with
respect to each Lease (a) the identity of the Lessee, (b) the expiry
date of the Lease and (c) the current monthly rental and whether it is
floating or fixed, (iv) with respect to each Headlease (a) the
identity of the Headlessor, (b) the expiry date of the Headlease and (c) the
current monthly rental and whether it is floating or fixed, and (v) with
respect to each Loan Facility (a) the identity of the agent bank and (b) the
initial principal sum of the Loan Facility and the outstanding balance, the
scheduled maturity date and the interest rate and monthly debt service (if a
fixed rate obligation) arising thereunder as at the most recent end of the
month;


 


Assets and Properties of
any Person means – with the exclusion of goodwill and tax assets – all assets
and properties of every kind, nature, character or description (whether real,
personal or mixed, whether tangible or intangible, whether absolute, accrued,
contingent, fixed or otherwise and wherever situated), operated, owned or
leased by such Person, including without limitation cash, cash equivalents,
Investment Assets, accounts and notes receivable, documents, instruments,
general intangibles, real estate, equipment, inventory, goods and Intellectual
Property;


 


Associated Company or Associated
Companies shall have the meaning as defined in Section 1.2;


 


Audited Financial Statements 2004 means the consolidated financial statements prepared in accordance
with GAAP of the Company and the dAF-Consolidated Group as of and for the
twelve months period ended December 31, 2004 as certified by
PricewaterhouseCoopers, Amsterdam, on February 23, 2005; and as approved
by the Supervisory Board of the Company on March 9, 2005;


 


Benefit Plan means any
Plan established or maintained by the Company or any dAF-Consolidated Company
existing at the Closing Date or prior thereto, to which the Company or any
dAF-Consolidated Company contributes or has contributed, and under which any
employee, former employee or director of the Company or any dAF-Consolidated Company
or any beneficiary thereof is covered, is eligible for coverage or has benefit
rights against the Company or any dAF-Consolidated Company;


 


6

















 


BGB means the German Civil Code;


 


BLB means Bayerische Landesbank;


 


BLB-Beteiligung means BLB Beteiligungsgesellschaft Beta
GmbH;


 


Books and Records means all files, documents, instruments,
papers, books and records relating to the Business or any Assets and Properties
of the Business (including any Aircraft), including without limitation
documents, data, records, financial statements, tax returns and budgets,
pricing guidelines, ledgers, journals, deeds, title policies, minutes, stock
certificates and books, stock transfer ledgers, contracts, licenses, customer
lists, computer files and programs, and operating data
and plans;


 


Breach shall have the meaning as defined in Section 6.1;


 


Breach Notice shall have the meaning as
defined in Section 6.1;


 


Business shall have the meaning
as defined in Recitals (A);


 


Business Day means a
day (other than a Saturday and a Sunday) on which banks are generally open in
Amsterdam, Frankfurt am Main and New York City for the transaction of normal
banking business;


 


Closing shall
have the meaning as defined in Section 4.5;


 


Closing Conditions shall have the meaning
as defined in Section 4.2;


 


Closing Confirmation shall have the meaning
as defined in Section 4.7;


 


Closing Date shall have the meaning
as defined in Section 4.1.3;


 


Closing Events shall have the meaning
as defined in Section 4.5;


 


Company shall have the meaning
as defined in Recitals (A);


 


Creditor means
the lender under any Loan Facility;


 


dAF shall have
the meaning as defined in Recitals (A);


 


dAF-Consolidated Company or dAF-Consolidated Companies shall have the
meaning as defined in Section 1.2;


 


dAF-Consolidated Group shall have the meaning
as defined in Section 1.2;


 


DC Aerospace means DaimlerChrysler Aerospace AG;


 


DC AG means DaimlerChrysler AG;


 


DC Services means DaimlerChrysler Services AG;


 


Deductible shall have the meaning
as defined in Section 7.2;


 


Disclosure Schedules shall have the meaning
as defined in Section 5.1;


 


DOJ means US Antitrust Division of the Department
of Justice;


 


7

















 


Dresdner Bank means Dresdner Bank AG;


 


DZ means DZ BANK AG Deutsche
Zentral-Genossenschaftsbank, Frankfurt am Main;


 


DZ Beteiligung means DZ Beteiligungsgesellschaft mbH Nr.
6;


 


ECA or ECAs  means (any of) the export credit
agencies Euler Hermes Kreditversicherungs-AG (Germany), Export Credits
Guarantee Department (the UK’s official export credit agency) and Coface SA
(France);


 


ECA Facility  shall have the meaning as
defined in Section 4.2.2(a);


 


ECA Finance Documents shall have the meaning as defined in Section 4.2.2(a);


 


Effective Date shall have the meaning
as defined in Section 4.1.1;


 


Engine means any engine being the subject of a Lease and/or a Headlease,
including, to the extent so permitted under the relevant Lease and/or
Headlease, replacement engines;


 


Final Refusal means, in
respect of any ECA Facility, MSN 313 Facility or JOL Facility, a written letter
from any the ECA Agents (as defined in the ECA Finance Documents) with respect
to the ECA Facilities, the Agents and the Lenders (as defined in the MSN 313
Finance Documents) with respect to the MSN 313 Finance Documents and/or the
Security Trustees and Lessors (each as defined in the JOL Finance Documents)
with respect to the relevant JOL Finance Documents, as the case may be,
stating finally, definitively and unconditionally that such Person has not and
will not grant a Waiver with respect to such ECA Facility, MSN 313 Facility or
JOL Facility, as the case may be;


 


Forward Order means the advance order from Airbus as described in more detail in Exhibit FO;


 


FTC means Federal Trade Commission;


 


GAAP means United States generally accepted accounting principles;


 


Governmental or Regulatory Authority means any court, tribunal, arbitrator,
authority, agency, commission, or other official body of any country or state,
county or city (excluding for the avoidance of doubt any Export Credit Agency);


 


Guarantees shall have the meaning
as defined in Section 5.1;


 


GWB means German Act against Restraints of Competition;


 


Headlease means any lease agreement pursuant whereto a Leased-in Aircraft or a
Structured Finance Aircraft is leased by a Person or entity to the Company or
any of the dAF-Consolidated Companies;


 


Headlease Documents means: (i) with respect to each Leased-in Aircraft, the
Headlease and all other agreements to which the Company or a dAF-Consolidated
Company is a party (including any side letters, assignment of warranties and
option agreements) pertaining to the leasing of Leased-in Aircraft to the
Company or any of the dAF-Consolidated Companies, and (ii) with respect to
a Structured Finance Aircraft, the Headlease, the Loan Facility and all other
agreements to which the


 


8

















 


Company or a
dAF-Consolidated Company is a party (including any side letters, assignment of
warranties and option agreements) as well as other operative documents pertaining
to the acquisition of the Structured Finance Aircraft, the financing thereof
and the leasing thereof to the Company or any of the dAF-Consolidated Companies
(in each case to the extent the Company or any of the dAF-Consolidated
Companies is a party to such documents);


 


Headlessor means any Person or entity which leases a Leased-in Aircraft or a
Structured Finance Aircraft to the Company or any of the dAF-Consolidated
Companies;


 


HVB means Bayerische Hypo- und Vereinsbank
AG;


 


HVB Luxembourg means HVB Banque Luxembourg SA;


 


Intra-Group Agreements shall mean any agreements between the Company and one or more
legally or beneficially wholly-owned dAF Consolidated Companies or among
legally or beneficially wholly-owned dAF Consolidated Companies to which no
other Person (other than the Company or a legally or beneficially wholly-owned
dAF-Consolidated Company) is a party, provided, however, that debis AirFinance
Ireland plc shall be deemed to be wholly-owned for purposes of this definition;


 


Investment Assets means
all debentures, notes and other evidences of indebtedness, stocks, securities
(including rights to purchase and securities convertible into or exchangeable
for other securities), interests in joint ventures and general and limited
partnerships, mortgage loans and other investment assets owned of record or
beneficially by the Company or any dAF-Consolidated Company and issued by any
Person other than the Company or any dAF-Consolidated Company (other than trade
receivables generated in the ordinary course of business of the Company and the
dAF-Consolidated Group);


 


JOL Facility shall have the meaning as defined in Section 4.2.2(b);


 


JOL Finance Documents shall have the meaning as defined in Section 4.2.2(b);


 


KfW means KfW;


 


Lease means any lease agreement in respect of an Aircraft or an Engine
pursuant to which an Aircraft or an Engine is leased by the Company or any
dAF-Consolidated Company to any Lessee;


 


Lease Documents means with respect to each Aircraft, the Lease and all other
agreements (including any material side-letters, extension agreements,
assignment of warranties and option agreements) related to that Lease;


 


Leased-in Aircraft means each Aircraft listed in the Aircraft Disclosure Schedule under
“Leased-in Aircraft”;


 


Lessee means any Person or entity which leases an Aircraft from the Company
or any of the dAF-Consolidated Companies pursuant to a Lease;


 


Lessor means the Company
or any of the dAF-Consolidated Companies which is the lessor under a Lease;


 


Lessor Guarantee shall
have the meaning as defined in Section 6 (c) of Exhibit 5.1;


 


Liability Cap shall have the meaning as
defined in Section 7.1;


 


9

















 


Loan Facility or Loan Facilities means any the loan agreements as listed in Exhibit LF;


 


Loans Transfer Documents shall have the meaning as
defined in Section 4.5.3;


 


Losses means any and all
direct damages and losses (i.e. excluding consequential damages (Folgeschäden) except to the extent as set
forth in this definition further below, and excluding internal administration
or overhead costs of the Purchaser or Cerberus Capital Management, L.P.), any
direct liabilities, fines, fees, penalties, deficiencies and expenses
(including without limitation interest, court costs, reasonable fees of
attorneys, accountants and other experts or other expenses of litigation or
other proceedings or of any claim, default or assessment), and including, with
respect to any entity, any of the foregoing that are incurred or suffered by or
through a direct or indirect subsidiary of such entity and including, in the
case of Losses incurred or suffered by the Company or any dAF-Consolidated
Company, lost or foregone revenues or profits (but excluding any lost or
foregone revenues or profits of the Purchaser and lost opportunities for anticipated
synergies to be created between the
Company or any dAF-Consolidated Company on the one hand and the Purchaser or
its Affiliates on the other hand) only to the extent of actual current
or the net present value of future lost, forgone or reduced cash flows of the
Company or any dAF-Consolidated Company;


 


Material Adverse Effect shall have the meaning as
defined in Section 4.2.4;


 


Material
Contracts
means all of the following agreements with principal obligations (Hauptleistungspflichten) still to be performed or
substantial liabilities outstanding:


 


(i)                                     leases or other agreements under which the Company or any
dAF-Consolidated Company is lessee of, or holds or operates, any machinery,
equipment, vehicle or other tangible personal property other than Aircraft
Assets owned by a third party and used in the Business and which entails annual
payments, in the case of any such lease or agreement, in excess of
US$1,000,000.00;


 


(ii)                                  all partnership, joint venture, shareholders’, cooperation or other
similar contracts with any Person (other than Intra-Group Agreements) to which
the Company or a dAF-Consolidated Company is a party;


 


(iii)                               all contracts that:


 


(a)                                  limit or contain restrictions on the ability of
the Company or any dAF-Consolidated Company to declare or pay dividends on, to
make any other distribution in respect of or to issue or purchase, redeem or
otherwise acquire its capital stock, to incur indebtedness, to incur or suffer
to exist any lien, to purchase or sell any operations, assets and properties,
to change the lines of business in which it participates or engages or to
engage in any business combination; or


 


(b)                                 require the Company or any dAF-Consolidated
Company to maintain specified financial ratios or levels of net worth or other
indicia of financial condition;


 


(iv)                              contracts
and agreements binding on the Company or any dAF-Consolidated Company and which
are:


 


10

















 


(a)                                  outstanding contracts with agents, salesmen,
sales representatives, distributors, sales agents or dealers of the Company or
any dAF-Consolidated Company other than contracts which involve annual payments
by any party of less than US$1,000,000.00 (one million US Dollars) and by their
terms are cancelable by the Company or any dAF Consolidated Company, with
notice of not more than thirty (30) days and without cancellation penalties or
severance payments, in the case of any such contract, in excess of
US$100,000.00 (one hundred thousand US Dollars);





 


(b)                                 collective bargaining agreements of the Company
or any of the dAF-Consolidated Group that relate to the Business;


 


(c)                                  Benefit Plans;


 


(d)                                 profit and loss pooling agreements (Ergebnisabführungsverträge) within the meaning of Section 291
para. 1 German Stock Corporation Act or equivalent agreements under foreign law
that relate to a fiscal unity (Organschaft),
contracts or agreements (other than Intra-Group Agreements) relating to past or
future mergers, business combinations or other dispositions or acquisitions of
the Business, other than dispositions or acquisitions of Aircraft Assets or
special purpose vehicles owning Aircraft Assets in the ordinary course of
business consistent with past practice;


 


(e)                                  contracts or agreements with (i) the five (5) largest Lessees, and other customers of the Company and the dAF-Consolidated Group, on the basis of revenues for the most recently-completed fiscal
year and (ii) the five (5) largest suppliers, including Headlessors,
of the Company and the dAF-Consolidated
Group, on the basis of cost for the most
recently-completed fiscal year;


 


(v)                                 Loan
Facilities;


 


(vi)                              contracts
with any Person containing any provision or covenant prohibiting or limiting
the ability of the Company or any dAF-Consolidated Company to engage in any
business activity or compete with any Person;


 


(vii)                           all
other contracts and agreements that involve the payment or potential payment,
pursuant to the terms of any such contract, by or to the Company or any
dAF-Consolidated Company of more than US$10,000,000.00 (ten million US Dollars)
annually; and


 


(viii)                        all
material amendments and material supplements as in force and operative as of
the Signing Date to any of the contracts and agreements listed under (i) through
(vii) above.


 


Material Contract Schedule means Schedule 6(a) to Exhibit 5.1
which lists all Material Contracts;


 


11

















 


Merger Filing or Merger
Filings shall have the meaning as defined in Section 4.3.2;


 


MSN 313
Finance Documents shall have the
meaning as defined in Section 4.2.2(b);


 


Notary means civil
law notary Mr W.H. Bossenbroek or another civil law notary of NautaDutilh, or
any of their deputies;


 


Noteholders means the noteholders under the US Notes;


 


Owned Aircraft means each Aircraft listed in the Aircraft Disclosure Schedule under
“Owned Aircraft”;


 


Party or Parties
shall mean the Sellers and the
Purchaser;


 


Permitted Security Interests means (i) mechanics’, carriers’, workmen’s, repairmen’s,
warehousemen’s, airport authority’s, landlord’s or other statutory Security Interests
arising from or incurred in the ordinary course of business and securing
obligations which are not due or which are being contested in good faith by the
Company or one or more of the dAF-Consolidated Companies; (ii) Security
Interests for Taxes which are not due and payable or which may thereafter
be paid without penalty or which are being contested in good faith by the
Company or one or more of the dAF-Consolidated Companies; (iii) easements,
covenants, rights-of-way and other encumbrances or restrictions of record; (iv) zoning,
building and other similar restrictions, provided the same are not
violated in any material respect by any improvements of the Company or any of
the dAF-Consolidated Companies or by the use thereof for the conduct of the Company’s
or any of the dAF-Consolidated Companies’ business; (v) any permitted lien
or lessor lien (as defined in the respective Lease or otherwise) under any of
the Leases, except, in each case, to the extent attributable to the Company or
any dAF-Consolidated Company; (vi) any permitted lien or lessor lien (as
defined in the Headlease or otherwise) under any of the Headleases, except, in
each case, to the extent attributable to the Company or any dAF-Consolidated
Company; (vii) any unrecorded easements, covenants, rights-of-way or other
encumbrances or restrictions, and other Security Interests that are not
material in character or amount, none of which unrecorded items or other
Security Interests materially impairs the use of the property to which they relate
in the business of the Company and the dAF-Consolidated Companies, taken as a
whole, as presently conducted, (viii) any and all Security Interests
created for the benefit of the SHL-Lenders or any one of them in accordance
with any of the SHL-Loans; (ix) any and all Security Interests created for
the benefit of the Noteholders or any one of them in accordance with the US
Notes; (x) any and all Security Interests created for the benefit of the
Creditors or any one of them in accordance with any of the Loan Facilities;
(xi) any and all Security Interest created for the benefit of any creditor in
accordance with any new facility agreement or other financing arrangement
(including new Headleases) in connection with the acquisition of any aircraft;
(xii) any and all Security Interests in relation to a Structured Finance
Aircraft; and (xiii) any and all other imperfections of title or encumbrances,
if any, which imperfections of title or encumbrances do not materially impair
the use of any asset with a net book value in excess of US$1,000,000.00 (one
million US Dollars);


 


Person means any natural
person, corporation, foundation, cooperative, limited liability company,
general partnership, business organization, trust, union, association, limited
partnership, proprietorship or Governmental
or Regulatory Authority;


 


Plan means any bonus,
incentive compensation, deferred compensation, pension, welfare, profit
sharing, retirement, stock purchase, stock option, stock ownership,


 


12

















 


stock
appreciation rights, phantom stock, leave of absence, layoff, vacation, day or
dependent care, legal services, cafeteria, life, health, accident, disability,
workmen’s compensation or other insurance, severance, separation or other
employee benefit plan, practice, policy or arrangement of any kind, whether
written or oral, including, but not limited to, any “employee benefit plans”,
but excluding any social welfare plans.


 


Purchase Price shall have the meaning as
defined in Section 3.1;


 


Purchaser  means FERN S.à r.l.;


 


Purchaser’s Bank Account shall have the meaning as
defined in Section 3.3;


 


Recoverable Claims shall have the meaning
as defined in Section 7.2;


 


Restitution in Kind shall have the meaning as defined in Section 6.1;


 


Revolving Facility shall have the meaning as
defined in Section 3.1;


 


Security Interest means, with respect to any
property or asset, any mortgage, lien, pledge, charge, security right, security
interest, right of retention, preferential claim, arrest, encumbrance or other
adverse claim of any kind in respect of that property or asset. For purposes
hereof, a Person or entity shall be deemed to own subject to a Security
Interest any property or asset that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to that property or asset;


 


Seller or Sellers means DC
Services, DC Aerospace, DC AG, HVB, HVB Luxembourg, BLB, BLB-Beteiligung,
Dresdner Bank, DZ, DZ Beteiligung, KfW;


 


Sellers’
Bank Account shall have the meaning as
defined in Section 3.2;


 


Sellers’ Knowledge shall have the
meaning as defined in Section 5.2;


 


Senior Facility Agreement shall have the meaning
as defined in Section 1.3.1;


 


Senior Lender or Senior
Lenders shall have the meaning as defined in Section 1.3.1;


 


Shareholders shall have the meaning
as defined in Section 1.1;


 


Shares shall have the meaning
as defined in Section 1.1;


 


Shares Transfer Deed shall have the meaning
as defined in Section 4.5.2;


 


Share
Transfer shall have the meaning as
defined in Section 4.2.2 (a);


 


SHL-Lender or SHL-Lenders shall have
the meaning as defined in Section 1.3;


 


SHL-Loan Agreements shall have the meaning
as defined in Section 1.3;


 


SHL-Loans shall have the meaning
as defined in Section 1.3;


 


SHL Senior Secured Refinancing Facility shall have the meaning
as defined in Section 1.3.1;


 


Signing Date shall have the meaning
as defined in Section 4.1.2;


 


13

















 


Structured Finance Aircraft means each Aircraft listed in the Aircraft Disclosure Schedule under
“Structured Finance Aircraft”;


 


Subordinated Lender or Subordinated
Lenders shall have the meaning as defined in Section 1.3.2;


 


Subordinated Loan Agreements shall have the meaning
as defined in Section 1.3.2;


 


Subordinated Loans shall have the meaning
as defined in Section 1.3.2;


 


Subsidiaries shall mean any Person that directly or
indirectly is controlled by another Person. For
purposes of this definition, control of a Person means the power, direct or
indirect, to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise and, in any event and without
limitation of the previous sentence, any Person owning more than fifty percent
(50%) of the voting rights and capital in another Person shall be deemed to
control that other Person;


 


Tax includes, without limitation, (a) taxes
on income, profits and gains, and (b) all other taxes, levies, duties,
imposts, charges and withholdings of any nature, including any excise,
property, sales, transfer, franchise and payroll taxes and any national
insurance or social security contributions, together with all penalties,
charges and interest relating to any of the foregoing or to any late or
incorrect return in respect of any of them, and regardless of whether such
taxes, levies, duties, imposts, charges, withholdings, penalties and interest
are chargeable directly or primarily against or attributable directly or
primarily to the relevant Person or any other Person and of whether any amount
in respect of them is recoverable from any other Person;


 


Third Party Claim shall have the meaning
as defined in Section 6.3;
and


 


US-Notes means the 7.95 % Series A Guaranteed Senior Notes Due 2005 and the
8.05 % Series B Guaranteed Senior Notes Due 2007 each dated December 14,
2000 issued by debis AirFinance Funding 1 B.V. within the framework of a US
private placement and guaranteed by the Company.


 


Waiver or Waivers shall have the meaning as defined in Section 4.2.2(a).


 


14

















 


List of Exhibits


 


	
  Exhibit C

  	
   

  	
  Cerberus
  Commitment Letter

  
	
  Exhibit FO

  	
   

  	
  Forward Order

  
	
  Exhibit LF

  	
   

  	
  Loan Facility/Loan Facilities

  
	
  Exhibit 1.2-1

  	
   

  	
  List of dAF-Consolidated
  Companies

  
	
  Exhibit 1.2-2

  	
   

  	
  List of Associated Companies

  
	
  Exhibit 1.2-3

  	
   

  	
  Group charts of the
  dAF-Consolidated Group and the Associated Companies

  
	
  Exhibit 1.3.1

  	
   

  	
  List of the respective
  participation of each Senior Lender in the SHL Senior Secured Refinancing
  Facility

  
	
  Exhibit 1.3.2-1

  	
   

  	
  List of Subordinated Loan
  Agreements

  
	
  Exhibit 1.3.2-2

  	
   

  	
  List of principal amounts and
  interest owed under the Subordinated Loans as of January 1, 2005

  
	
  Exhibit 3.1

  	
   

  	
  Allocation of Purchase Price

  
	
  Exhibit 3.2

  	
   

  	
  Sellers’ Bank Account

  
	
  Exhibit 4.2.2(a)

  	
   

  	
  ECA Facilities

  
	
  Exhibit 4.2.2(b)

  	
   

  	
  MSN 313 Finance Agreements

  
	
  Exhibit 4.2.2(c)

  	
   

  	
  JOL Facilities

  
	
  Exhibit 4.2.4
  (i)

  	
   

  	
  List of material subsidiaries

  
	
  Exhibit 4.5.1
  (ii)

  	
   

  	
  Bank Account of the Company

  
	
  Exhibit 4.5.2

  	
   

  	
  Shares Transfer Deed

  
	
  Exhibit 4.5.3-1

  	
   

  	
  Loans Transfer Documents
  regarding SHL Senior Secured Refinancing Facility

  
	
  Exhibit 4.5.3-2

  	
   

  	
  Loans Transfer Documents
  regarding Subordinated Loans

  
	
  Exhibit 4.5.4

  	
   

  	
  List of resigning supervisory
  board members

  
	
  Exhibit 5.1

  	
   

  	
  Guarantees

  
	
  Exhibit 5.1
  (ii)

  	
   

  	
  Sellers’ respective shares in
  liability

  
	
  Exhibit 5.2

  	
   

  	
  List of persons regarding
  Sellers’ Knowledge

  
	
  Exhibit 7.4.5

  	
   

  	
  Purchaser’s Knowledge

  
	
  Exhibit 8.1

  	
   

  	
  Shareholders’ Resolution

  
	
  Exhibit 8.1.2

  	
   

  	
  List of Sellers and Persons

  
	
  Exhibit 8.2.1

  	
   

  	
  Corporate Matters after the
  Signing Date

  
	
  Exhibit 8.2.5

  	
   

  	
  Dividend Payments after the
  Signing Date

  
	
  Exhibit 8.2.6

  	
   

  	
  Disposals of Shares after the
  Signing Date

  
	
  Exhibit 8.2.7

  	
   

  	
  Changes to Compensation of
  Directors, Officers and Employees after the Signing Date

  
	
  Exhibit 8.2.8

  	
   

  	
  Corporate Reorganizations
  after the Signing Date

  
	
  Exhibit 8.2.9

  	
   

  	
  Transactions with Affiliates after the
  Signing Date

  



 


15

















 


List of Disclosure Schedules


 


	
  Schedule 1.2 (b)

  	
   

  	
  Articles of Incorporation, Articles of
  Association and Partially Paid-up Shares

  
	
  Schedule 1.2 (c)

  	
   

  	
  Directors, Supervisory Directors and Proxyholders

  
	
  Schedule 1.3 (a) and

  Schedule 1.3 (aa)

  	
   

  	
  Certain companies of the dAF-Consolidated Group and Articles of
  Association of certain companies of the dAF-Consolidated Group

  
	
  Schedule 1.3
  (b)

  	
   

  	
  Title to Shares

  
	
  Schedule 1.3
  (c)

  	
   

  	
  Foreign Directors / Proxyholders

  
	
  Schedule 2

  	
   

  	
  Operation since January 1, 2005

  
	
  Schedule 3.1
  (a)

  	
   

  	
  Licences

  
	
  Schedule 3.1
  (b)

  	
   

  	
  Licences Exceptions

  
	
  Schedule 3.2
  (b)

  	
   

  	
  Compliance with Laws

  
	
  Schedule 4.1
  (a)

  	
   

  	
  Encumbered Tangibles

  
	
  Schedule 4.1
  (b)

  	
   

  	
  Real Property

  
	
  Schedule 4.2
  (a)

  	
   

  	
  Material Insurance Policies

  
	
  Schedule 4.2
  (a)-1

  	
   

  	
  Insurance Termination Grounds

  
	
  Schedule 4.2
  (a)-2

  	
   

  	
  Defective Insurances

  
	
  Schedule 4.2
  (b)

  	
   

  	
  Insurance Claims

  
	
  Schedule 5 (a)

  	
   

  	
  Aircraft Disclosure

  
	
  Schedule 5 (c)

  	
   

  	
  Other Aircraft

  
	
  Schedule 5 (d)

  	
   

  	
  Lease Default

  
	
  Schedule 5 (e)

  	
   

  	
  Headlease Default

  
	
  Schedule 5 (f)

  	
   

  	
  Lease Documents

  
	
  Schedule 5 (g)

  	
   

  	
  Headlease Documents

  
	
  Schedule 5 (h)

  	
   

  	
  Lease Defects

  
	
  Schedule 5 (i)

  	
   

  	
  Material Lease Claims

  
	
  Schedule 5 (j)

  	
   

  	
  Security Interests on Aircraft Assets

  
	
  Schedule 5 (k)

  	
   

  	
  Incidents

  
	
  Schedule 5 (l)

  	
   

  	
  Airworthiness Directives

  
	
  Schedule 5 (m)

  	
   

  	
  Options

  
	
  Schedule 5 (n)

  	
   

  	
  Lease Termination Grounds

  
	
  Schedule 6 (a)

  	
   

  	
  Material Contracts

  
	
  Schedule 6 (b)

  	
   

  	
  Material Default

  
	
  Schedule 6 (c)

  	
   

  	
  Guarantees

  
	
  Schedule 6 (d)

  	
   

  	
  Sureties

  
	
  Schedule 7 (a)

  	
   

  	
  Litigation

  
	
  Schedule 8.1

  	
   

  	
  Service Agreements

  
	
  Schedule 8.3

  	
   

  	
  Collective Labor Disputes

  
	
  Schedule 8.4
  (a)

  	
   

  	
  Benefit Plans

  
	
  Schedule 8.4
  (b)

  	
   

  	
  Benefit Litigation

  
	
  Schedule 10.1

  	
   

  	
  Consolidated Balance Sheet

  
	
  Schedule 10.2

  	
   

  	
  Resolutions

  
	
  Schedule 10.3-1

  	
   

  	
  Notes to the Audited Financial Statements 2004

  
	
  Schedule 10.3-2

  	
   

  	
  No Undisclosed Liabilities

  
	
  Schedule 11

  	
   

  	
  Investment Assets

  
	
  Schedule 12

  	
   

  	
  Conflicts

  
	
  Schedule 17.1

  	
   

  	
  Tax Liabilities

  
	
  Schedule 17.2

  	
   

  	
  Tax Disputes

  



 


16

















 


	
  Schedule 17.3

  	
   

  	
  Social Tax

  
	
  Schedule 17.4

  	
   

  	
  Permanent Establishments

  



 


17

















 


RECITALS


 


(A)                             WHEREAS, the Sellers,
as further detailed in this agreement and its Exhibits and Disclosure Schedules
(collectively, the “Agreement”) are
shareholders and/or lenders of debis AirFinance B.V., Amsterdam, The
Netherlands (the “Company” or “dAF”), a company which, directly or
indirectly through the dAF-Consolidated Group and the Associated Companies, is
active in the worldwide purchasing, leasing, selling and financing of
commercial aircraft (including engines and spare parts) and the provision of
aircraft servicing, asset management and related other services (collectively,
the “Business”).


 


(B)                               WHEREAS, the Sellers
intend to sell and transfer (leveren) all
shares in the Company as well as certain loans and credit facilities upon the
terms and conditions of this Agreement to the Purchaser, who is willing to
purchase and acquire such shares, loans and credit facilities accordingly.


 


(C)                               WHEREAS, by the letter attached hereto as Exhibit C Cerberus Capital
Management L.P. is, subject to the terms and conditions set forth in such
letter, agreeing to make payment to the Sellers in the event that the Purchaser
breaches its obligation to consummate the transactions contemplated under this
Agreement.


 


Now, therefore, the Parties agree as follows:


 


1.                                      Current
Status


 


1.1                               debis AirFinance B.V.


 


The Company is
a limited liability company formed and validly existing under the laws of The
Netherlands with corporate seat in Amsterdam, The Netherlands, which is
registered with the Kamer van Koophandel en Fabrieken voor Amsterdam under
registry no. 34094272. The authorized and issued share capital of the
Company amounts to €363,024,000.00 (in words: three hundred sixty-three million
twenty-four thousand Euros) and is divided into 800,000 shares in the nominal
amount of €453.78 (in words: four hundred fifty-three Euros and seventy-eight
Cents) each (all 800,000 shares, collectively, the “Shares”).
Of the total authorized and issued share capital of the Company, an amount of
€334,075,720.00 (in words: three hundred thirty-four million seventy-five
thousand seven hundred twenty Euros) has been paid in by the Shareholders pro rata to their respective shareholdings. Sole
shareholders of the Company with the following shareholdings are:


 


	
  Shareholder

  	
   

  	
  No. of Shares held:

  	
   

  	
  Percentage of

  Share Capital:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DC Services

  	
   

  	
  280,000

  	
   

  	
  35

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DC Aerospace

  	
   

  	
  80,000

  	
   

  	
  10

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BLB-Beteiligung

  	
   

  	
  120,000

  	
   

  	
  15

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dresdner Bank

  	
   

  	
  120,000

  	
   

  	
  15

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HVB

  	
   

  	
  120,000

  	
   

  	
  15

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DZ Beteiligung

  	
   

  	
  80,000

  	
   

  	
  10

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  800,000

  	
   

  	
  100

  	
  %

  



 


18

















 


(DC Services,
DC Aerospace, BLB-Beteiligung, Dresdner Bank, HVB and DZ Beteiligung in their
capacity as shareholders of the Company, collectively, the “Shareholders”).


 


1.2                               Subsidiaries and Participations of the Company


 


The companies, which are consolidated in the Audited Financial Statements 2004 or established or acquired
after the Effective Date, and
which – except as set forth in Schedule 1.3 (b) to Exhibit 5.1 –
are, directly or indirectly wholly-owned by the Company are listed in Exhibit 1.2-1 and, collectively,
referred to as the “dAF-Consolidated Group”
and each of them individually as a “dAF-Consolidated
Company” and several of them “dAF-Consolidated
Companies”. In addition to the dAF-Consolidated Group, as of the
Signing Date, the Company directly and indirectly only holds shares in the
companies set out in Exhibit 1.2-2
(collectively, the “Associated Companies”
and each of them individually an “Associated
Company”). For illustration purposes, Exhibit 1.2-3 contains several group charts of the
dAF-Consolidated Group and the Associated Companies.


 


1.3                               Loans and Facilities granted to the Company


 


1.3.1                     Senior Secured Refinancing
Facility


 


On March 3,
2004, DC AG (as successor of DaimlerChrysler Coordination Center SCS), HVB
Luxembourg, BLB, Dresdner Bank, DZ and KfW (DC AG, HVB Luxembourg, BLB,
Dresdner Bank, DZ and KfW in their capacity as such lenders of the Company,
collectively the “Senior Lenders”
and each of them individually a “Senior Lender”),
the Company and ABN Amro Bank N.V. have entered into a facility agreement (the “Senior Facility Agreement”) regarding the establishment and
terms of a senior secured refinancing facility (the “SHL Senior Secured Refinancing Facility”) to the Company in
the principal amount of US$1,645,000,000.00 (in words: one billion six hundred
and forty-five million US Dollars) which facility replaced certain term and
revolving credit facilities to the Company. As of January 1, 2005, a
principal amount of US$1,516,400,000 (in words: one billion five hundred and
sixteen million four hundred thousand US Dollars) plus accrued and unpaid
interest in the amount of US$ 12,660,738.93 (in words: twelve million six
hundred sixty thousand seven hundred thirty-eight US Dollars and ninety-three
cents) was outstanding under the SHL Senior Secured Refinancing Facility.


 


19

















 


Details as to
the respective participation of each Senior Lender in the SHL Senior Secured
Refinancing Facility are set forth in Exhibit 1.3.1
hereto.


 


1.3.2                     Subordinated Loans and
Facilities


 


In addition,
DC Services, DC Aerospace, HVB Luxembourg, BLB, Dresdner Bank, DZ and KfW (DC
Services, DC Aerospace, HVB Luxembourg, BLB, Dresdner Bank, DZ and KfW in their
capacity as such subordinated lenders of the Company, collectively the “Subordinated Lenders” and each of them individually a “Subordinated Lender”), have entered into the subordinated
loan agreements (collectively, the “Subordinated
Loan Agreements”) regarding the provision to the Company of subordinated
loans and facilities (collectively, the “Subordinated
Loans”) as set forth in Exhibit 1.3.2-1
hereto. The principal amounts together with accrued and unpaid interest
outstanding under each such Subordinated Loan as of January 1, 2005, are
set out in Exhibit 1.3.2-2
hereto.


 


The SHL Senior
Secured Refinancing Facility and the Subordinated Loans, collectively, are
referred to as the “SHL-Loans”,
and the Senior Facility Agreement and the Subordinated Loan Agreements, each
including any amendment, supplement and ancillary documents (such as security
documents) thereto, collectively, are referred to as the “SHL-Loan
Agreements”. The Senior
Lenders and the Subordinated Lenders, collectively, are referred to as the “SHL-Lenders”, and each of them individually
as a “SHL-Lender”.


 


2.                                      Sale and
Assignment


 


2.1                               Sale and Purchase of the Shares


 


Subject to the
terms of this Agreement, each of the Shareholders hereby sells (verkauft) with commercial effect (wirtschaftlicher
Wirkung) as from (and including) the Effective Date (as defined in Section 4.1.1
below) to the Purchaser any and all of its respective Shares including any
dividend rights (Gewinnbezugsrechte) for
all profits not yet distributed on the Effective Date and any other ancillary
rights for the period as from
(and including) the Effective Date and any other ancillary rights pertaining to
the respective Shares. The Purchaser hereby purchases the Shares from the
Shareholders in accordance with the foregoing sentence.


 


2.2                               Sale and Purchase of the SHL-Loans


 


Subject to the
terms of this Agreement, each of the SHL-Lenders hereby sells (verkauft) with commercial effect (wirtschaftlicher
Wirkung) as from (but excluding) the Closing (as defined in Section 4.5
below) to the Purchaser its respective entire participation in the SHL-Loans
including any and all respective rights and obligations under the SHL Loan
Agreements. The Purchaser hereby purchases the SHL-Loans including such rights
and obligations from the SHL-Lenders in accordance with the foregoing sentence.


 


20

















 


From and after
the Closing the Purchaser shall hold the SHL-Lenders free and harmless from and
against any and all claims based on the doctrine of creditors’ prejudice (Actio Pauliana) which the Company, any member of the
dAF-Consolidated Group and/or any third party may have against any
SHL-Lender, in its capacity as lender in respect of any payment received
by a SHL-Lender under the
SHL-Loans prior
to the Closing.


 


2.3                               Transfer and Assignment


 


The Parties
agree that at, and subject to the occurrence of the Closing the Shares shall be
transferred (geleverd) to the
Purchaser by means of the Shares Transfer Deed (as defined in Section 4.5.2
below), and the SHL-Loans shall be transferred in
rem (dinglich übertragen) to the
Purchaser by means of the Loans Transfer Documents (as defined in Section 4.5.3
below). The SHL-Loans shall be transferred to
the Purchaser with all rights and obligations attached thereto.


 


3.                                      Purchase
Price


 


3.1                               Purchase Price Amount


 


The aggregate purchase price for the Shares and the SHL-Loans shall be
a fixed amount of US$ 1,370,000,000 (in words: one billion three hundred
seventy million US Dollars) (i) plus any
amounts drawn (and outstanding at the Closing) under the US$100,000,000.00 (in
words: one hundred million US Dollars) revolving facility (“Revolving Facility”) that is part of
the SHL Senior Secured Refinancing Facility except to the extent that such
amounts have been drawn in violation of the Shareholders’ obligations under Section 8.7
below, (ii) plus any accrued and unpaid
interest on the SHL-Loans (including accrued and unpaid interest under the
Revolving Facility) until the Closing, and (iii) less
the aggregate amount of all payments of principal on, or with respect to, the SHL-Loans
subsequent to December 31, 2004 (collectively, the “Purchase Price”). The Purchase Price and
all other payments by the Purchaser to the Sellers shall be allocated to the
Sellers as set forth in Exhibit 3.1.
At least [three (3)]
days prior to the Closing Date, the Sellers shall confirm in writing to the
Purchaser (i) the amounts drawn under the Revolving Facility in accordance
with the foregoing and (ii) the aggregate amount of principal paid (or to
be paid prior to the Closing) on the SHL-Loans since December 31, 2004 and
(iii) the aggregate amount of principal and interest as will be
outstanding on the SHL-Loans at the Closing. For the avoidance of doubt, it is
expressly clarified that payments made by the Company to the SHL Lenders
between the Effective Date and the Closing in accordance with the terms of the
SHL-Loan Agreements in respect of interest accrued on the SHL-Loans up to the
Effective Date shall not lead to a reduction of the Purchase Price.


 


3.2                               Payments to the Sellers


 


At the Closing
Date, the Purchaser shall pay, subject to all Closing Conditions being
satisfied or waived in accordance with this Agreement and all Closing


 


21

















 


Events as set
forth in Section 4.5 occurring as contemplated therein, the full Purchase
Price to the bank account set forth in Exhibit 3.2
(the “Sellers’ Bank Account”).


 


Any other payments to the
Sellers under this Agreement, if any, shall be made to the bank account which
the respective Seller has notified to the Purchaser at least three (3) Business Days prior to
such payment becoming due.


 


To the extent
that payments are to be allocated in accordance to Exhibit 3.1 to a
Seller, such Seller has the individual right to claim that such payments be
made to the bank accounts indicated in this Section 3.2. For the avoidance
of doubt, the Parties agree that Sellers shall exercise jointly all other
rights and remedies they have under this Agreement.


 


3.3                               The Purchaser’s Bank Account


 


Any payments
to the Purchaser under this Agreement, if any, shall be made to the bank
account of the Purchaser which the Purchaser has notified to the Sellers at
least three (3) Business Days prior to the respective payment date (the “Purchaser’s Bank
Account”).


 


3.4                               Terms of Payments


 


Any payments
under this Agreement shall be made by wire transfer in immediately available
funds, value as of the relevant due date set out in this Agreement or otherwise
provided by law, free of bank and/or any other fees or charges.


 


4.                                      Closing


 


4.1                               Dates


 


Signing Date,
Effective Date and Closing Date shall each have the following meaning in this
Agreement:


 


4.1.1                        “Effective Date” shall be January 1,
2005, 0:00 hours.


 


4.1.2                         “Signing Date” shall be the day on which
this Agreement is duly notarized.


 


4.1.3                         Unless otherwise agreed in writing between the Parties, “Closing Date” shall be the fifth (5th) Business
Day after the date on which the last of the Closing Conditions (as defined in Section 4.2
below) has been fulfilled or waived in accordance with Section 4.4 below.


 


4.2                               Closing Conditions


 


The obligation
of the Sellers, on the one hand, and the Purchaser, on the other hand, to perform the
Closing shall be subject to the following conditions (collectively, the “Closing Conditions”) being either fulfilled
or, to the extent


 


22

















 


permissible
under applicable laws, waived by the Party entitled to such waiver pursuant to
4.4 below; provided, that (i) Sellers’ obligation to perform the
Closing shall not be subject to the fulfillment or waiver of the conditions set
forth in Sections 4.2.2, 4.2.4, 4.2.5, 4.2.6 and 4.2.8, and (ii) Purchaser’s
obligation to perform the Closing shall not be subject to the conditions
set forth in Sections 4.2.7 and 4.2.9:


 


4.2.1                        (i) The waiting period
under the US Hart-Scott-Rodino Antitrust Improvement Act of 1976 applicable to
the transactions contemplated by this Agreement shall have expired or been
terminated, and (ii) either (a) the
German Federal Cartel Office has confirmed the lack of a filing requirement
under the German Act Against Restraints of Competition (“GWB”) upon receipt of an informal
notification letter by the parties, or (b) a clearance of the transaction
pursuant to Section 40 Section 1 Sentence 1
GWB or pursuant to Section 40 Section 2 GWB was issued or is deemed
to be issued due to the expiration of the relevant waiting periods.


 


For the avoidance of doubt, the filing to be
made with and the clearance to be obtained by the cartel authorities in Brazil,
Korea and Mexico in accordance with Section 4.3.2 shall not constitute a
Closing Condition.


 


4.2.2                         The Company shall have provided to the Purchaser the following in respect of (a) the ECA Facilities, the MSN 313 Facility and the
JOL Facilities with combined outstanding principal amounts (including, without
limitation, the equity portion under the JOL Finance Documents) at least equal
to 90% of the combined outstanding principal amounts (including, without
limitation, the equity portion under the JOL Finance Documents) under all of the
ECA Facilities, the MSN 313 Facility and the JOL Facilities, and (b) without
in any manner limiting clause (a) above, at least four of the five JOL
Facilities:


 


(a) in
respect of each of the agreements listed in Exhibit 4.2.2(a) (each, an “ECA Facility”) and all other financing and
lease documents related thereto (the ECA Facilities together with all other
financing and lease documents relating thereto (other than the facility
agreement dated 23 April 2003 (the “ECA Facility Agreement”)
to the extent that it relates to future ECA financings, but including any
related “Mismatch Facility”, collectively the “ECA Finance Documents”), a written, binding and effective
agreement or document (each agreement or document required under Sections
4.2.2(a), 4.2.2(b) and/or 4.2.2(c), a “Waiver”,
and all such required agreements and documents, collectively, the “Waivers”) from each of the ECA Agents and
(if any) the “Mismatch Agents” (each as defined in the ECA Facility Agreement)
substantially to the effect that it waives, or confirms inapplicability of, any
right it may have under any ECA Finance Documents by reason of the
transfer of the Shares as contemplated by this Agreement (the “Share Transfer”), which rights principally


 


23

















 


consist of the
right to (A) require good faith discussions with a view to agreeing to
alternative arrangements and conditions in respect of such ECA Finance
Documents, provided that in the event such good faith discussion have taken
place it would be sufficient to receive written confirmations by the ECA Agents
and (if any) the Mismatch Agents that such discussions took place and that such
requirement has been fully satisfied in accordance with the ECA Finance
Documents, (B) terminate any lease agreement forming part of the
respective ECA Finance Documents, and/or (C) accelerate or cause to become
due any loan made under the ECA Finance Documents;


 


(b) in
respect of each of the financing and lease documents in respect of the Aircraft
with manufacturer’s serial number 313 as listed in Exhibit 4.2.2(b) (collectively
the “MSN 313 Finance Documents”; the
transactions contemplated by the MSN 313 Finance Documents are collectively
referred to as the “MSN 313 Facility”),
a Waiver from each of the Agent, the Lessor and the Lenders (each as defined in
the MSN 313 Finance Documents) substantially to the effect that it waives, or
confirms inapplicability of, (i) any right it may have under any MSN
313 Finance Documents by reason of the Share Transfer, which rights principally
consist of the right to require good faith discussions with a view to agreeing
to alternative arrangements and conditions in respect of such MSN 313 Finance
Documents, provided that in the event such good faith discussion have taken
place it would be sufficient to receive written confirmations by the Agent, the
Lessor and the Lenders that such discussions took place and that such
requirement has been fully satisfied in accordance with the MSN 313 Finance
Documents and (ii) any termination (automatic or otherwise) of, or
required payment or acceleration under, the MSN 313 Finance Documents by reason
of the Share Transfer;


 


(c) in
respect of each of the agreements listed in Exhibit 4.2.2 (c) (each, a “JOL Facility”) and all other financing and lease
documentation relating thereto (the JOL Facilities, together with all other
financing and lease documentation relating thereto, collectively he “JOL Finance Documents”), a Waiver from each
of the respective Security Trustees and Lessors (as defined in the JOL Finance
Documents) substantially to the effect that it waives, or confirms
inapplicability of, (i) any rights that it may have under any
documentation in respect of such JOL Finance Documents by reason of the
transfer of the Share Transfer, which rights principally consist of the right
to (A) require good faith discussions with a view to agreeing to
alternative arrangements and conditions in respect of any of the JOL Finance
Documents, provided that in the event such good faith discussion have taken
place it would be sufficient to receive a written confirmation by the Security
Trustees and Lessors that such discussions took place and that such requirement
has been fully satisfied in accordance with the JOL Finance Documents, (B) terminate
(or serve a notice of termination in respect of) any lease agreement forming part of
the respective JOL Finance Documents, 


 


24

















 


and/or (C) accelerate
or cause to become due any loan made under such 
JOL Finance Documents, and (ii) (under the JOL Finance Documents
with respect to the Aircraft with manufacturer’s serial number 2084) any
termination (automatic or otherwise) of, or required payment or acceleration
under, any agreement forming part of the respective JOL Finance Documents
by reason of the Share Transfer;


 


such Waivers in each case of (a)-(c) above to be unconditional and
irrevocable and, in particular, not subject to (i) the payment of any fee
or similar amount in excess of US$1,000,000 (one million US Dollars) in the
aggregate in respect of all of the ECA Facilities, the MSN 313 Facility and the
JOL Facilities (minus any amounts which the Sellers may at their sole
discretion have paid on behalf of the Company or any dAF-Consolidated Company
on or prior to the Closing Date), (ii) change of any terms of such ECA
Finance Documents, MSN 313 Finance Documents and JOL Finance Documents (other
than any non-economic change, amendment, supplement or other modification which
is of an immaterial or non-substantive nature), and/or (iii) change of the
terms of the transactions contemplated by this Agreement or the financing
thereof, including any requirement  to
contribute more equity financing to the Company or such financing or to provide
any additional security (it being acknowledged, for the avoidance of doubt only, that the
Waivers shall not be considered to be conditional solely by virtue of their
being conditioned on fees or amounts referred to in the foregoing clause (i) if
the aggregate amount thereof is below the threshold specified in such clause (i) and/or
their being conditioned upon non-economic changes, amendments, supplements or
other modifications referred to in the parenthetical in the foregoing clause
(ii)).


 


For the avoidance of doubt, it is expressly agreed between the Parties
that the Sellers shall under no circumstances whatsoever be under an obligation
to provide any kind of financings other than pursuant to agreements between any
one of the Sellers on the one side and the Company and/or dAF-Consolidated
Company on the other side existing at the date hereof.


 


4.2.3                         No
preliminary or permanent injunction or other order (including a temporary
restraining order) issued by a court or other Governmental or Regulatory
Authority of competent jurisdiction being in effect which has the effect of
making the purchase and sale contemplated by this Agreement illegal or
otherwise prohibiting its consummation or which would otherwise deny the
Purchaser its receipt or realization of all or substantially all of the benefits
of the purchase and sale contemplated by this Agreement;


 


4.2.4                        None of the following events (hereinafter referred to as “Material Adverse Effect”) shall have occurred since the
Signing Date:


 


25

















 


(i)                                     the opening of insolvency proceedings in
respect of any of the Sellers, the Company and/or any material subsidiary of
the Company as listed in Exhibit 4.2.4
(i); or


 


(ii)                                  any other event, development, condition,
matter, change or effect outside the ordinary course of the Business which
individually or together with other adverse events, conditions, matters,
changes or effects outside the ordinary course of the Business has resulted in,
or is reasonably likely to result in, one or more negative impacts on the value
of the Business taken as a whole, with such value being calculated on the basis
of its current and/or reasonably forecasted future cash flows, and/or one or
more Losses to the Company and/or the dAF-Consolidated Group taken as a whole
aggregating to an amount in excess of US$125,000,000.00 (in words: US Dollars
one hundred and twenty-five million).


 


4.2.5                        Each of the
Guarantees made by the Sellers in Sections 1.1, 1.2(a), 1.2(b), 1.3(a), 1.3(b),
2 (a), 2 (b), and 9 of Exhibit 5.1 shall have been true and correct in all
material respects when made and as of the Closing Date as if made on and as of
the Closing Date, unless any Losses resulting from such Breach have been fully
remedied.


 


4.2.6                        Each of the other Guarantees made by the Sellers in this Agreement
shall have been true and correct when made, provided that the condition
set forth in this Section 4.2.6 shall be deemed to have been satisfied if
the failure of any such Guarantees to be true and correct, individually or
together with other such failures, has not resulted in, and is not reasonably
likely to result in, a Loss or Losses to the Company, any dAF-Consolidated
Company and/or the Purchaser that has not been fully remedied, aggregating to an amount in excess of US$50,000,000.00 (in words: fifty million US Dollars). The Purchaser
shall notify the Sellers immediately after they have become aware of any
Guarantee being not true and correct with a view to enable remediation by the
Sellers, it being understood that failure of the Purchaser to notify Sellers
shall not have any effect on, or prejudice the Purchaser with respect to,
whether the Closing Condition under this Section 4.2.6 has been satisfied
(keine Bedingungsvereitelung).


 


4.2.7                        Each of the guarantees made by the Purchaser in this Agreement shall
have been true and correct in all material respects when made and, with respect
to the guarantees set forth in Sections 9.1.1, 9.1.2 and 9.1.5, shall also be
true and correct in all material respects on and as of the Closing Date as if
made on and as of the Closing Date.


 


4.2.8                        The Sellers shall have performed and complied with, in all material
respects, with each agreement, covenant and obligation set forth in Sections 2,
3.1, 4.3.1, 8.2.1, 8.2.2, 8.2.3, 8.2.5, 8.2.6, 8.2.8, 8.4, 8.5 and 8.7 to the extent
to be performed and complied with on or before the Closing Date.


 


26

















 


4.2.9                        The Purchaser shall have performed and complied with, in all
material respects, each agreement, covenant and obligation required by this
Agreement to be so performed or complied with by the Purchaser at or before the
Closing.


 


4.3                               Fulfillment of Closing Conditions; Merger Control Filing


 


4.3.1                        The
Parties undertake to use all reasonable endeavors and to render to each other
all reasonably necessary support and cooperation to ensure that the Closing
Conditions are fulfilled as soon as possible after the Signing Date. The
Parties shall inform each other in writing without undue delay as soon as
any or all of the Closing Conditions shall have been fulfilled. In the event
that such written confirmation by a Party that a Closing Condition has been
fulfilled is incorrect but Closing has occurred, no Party shall be entitled to
withdraw from this Agreement nor to make any claims against the other Parties
with respect to such incorrect confirmation, except that any rights of a Party
in case of fraud (Arglist) and willful wrongdoing (Vorsatz) as well as any claims (other than any right to
withdraw) due to a Breach or the breach of a covenant, agreement or obligation
contained in this Agreement shall remain unaffected.


 


4.3.2                        Without
limitation as for the generality of Section 4.3.1, though each Party
remains responsible for preparing and making its own required filings, the
Shareholders and the Purchaser shall cooperate with one another. The Purchaser
shall, and the Shareholders shall cause the Company to (i) make within
three (3) Business Days after the Signing Date the filing under Section 4.2.1
above to the US Federal Trade Commission (the “FTC”)
and the US Antitrust Division of the Department of Justice (the “DOJ”).
Further, the Purchaser shall (i) notify the German Federal Cartel Office
within three (3) Business Days after the Signing Date about this
transaction (while the Purchaser and the Shareholders assume that there is no
requirement for a merger filing under the German Act Against Restraints of
Competition  (GWB), the Purchaser shall
make within three (3) Business Days a filing to the German Federal Cartel
Office if so required by the German Federal Cartel Office), and (ii) make
merger filings in Brazil, Korea, Mexico within the notification period under
applicable national antitrust laws. The filings with the FTC and DOJ, shall be
filed separately by the Purchaser and the Company, as the case may be, the notification
letter and/or filing with the German Federal Cartel Office and the filings with
the cartel authorities in Brazil, Korea, Mexico (collectively, the “Merger Filings” and individually a “Merger
Filing”) shall be filed by the Purchaser on behalf of the
Shareholders and the Purchaser, after prior written approval of the
Shareholders which shall  not be
unreasonably withheld. The Shareholders shall submit to the Purchaser such
documents and other information and shall provide such other assistance to the
Merger Filings as is necessary or expedient to obtain clearance of the merger
as soon as


 


27

















 


reasonably possible. The Purchaser shall undertake or cause to be
undertaken all reasonable steps necessary to remove any impediments,
restrictions, or conditions that may affect the Closing Conditions (other
than the Closing Conditions set forth in Section 4.2.2 in respect of which
the covenants set forth in Section 8.9 below shall apply) including, but
not limited to, the Purchaser’s selling or divesting, or taking on the
obligation for a sale or divestment, of shares or tangible or intangible assets
or business operations of the dAF-Consolidated Group and/or the Associated
Companies or any part thereof as necessary to receive the approval or
clearance of competition or antitrust authorities in all jurisdictions referred
to in Section 4.2.1, or to remove any decision, order, decree, complaint,
injunction, or other impediment or restriction which impedes or threatens to
impede the Closing.


 


4.4                               Waiver of Closing Conditions


 


The Purchaser may waive the Closing Conditions set forth in
Sections 4.2.2, 4.2.4, 4.2.5, 4.2.6 and 4.2.8 by written notice to the Sellers
and the Sellers may waive the Closing Conditions set forth in Sections
4.2.7 and 4.2.9 by written notice to the Purchaser. The effect of a waiver
shall be limited to eliminating the respective Closing Condition and shall not
prejudice any claims any Party may have on the basis of any circumstances
relating to the non-fulfillment of such Closing Condition.


 


4.5                               Closing Events


 


On the Closing Date the following events (the “Closing Events”) which in their entirety
shall constitute the “Closing” shall
be or shall have been performed simultaneously (Zug um Zug)
at the offices of NautaDutilh N.V., Amsterdam, or such other place or date as
agreed by the Parties:


 


4.5.1                        The
Purchaser shall


 


(i)                                     pay
on its own behalf the Purchase Price to the Sellers’ Bank Account set forth in Exhibit 3.2,
and the Notary shall receive a written confirmation of receipt of such payment
from the bank keeping such account; and


 


(ii)                                  on
behalf and in the name of the relevant Shareholders, pay up the outstanding
amounts of the shares identified in Schedule 1.2. (b) to Exhibit 5.1
to the bank account of the Company set forth in Exhibit 4.5.1 (ii) and the Sellers and the
Notary shall receive a written confirmation of receipt from the bank keeping
such account;


 


4.5.2                        The
Shareholders shall transfer the Shares to the Purchaser by means of a notarial
deed, substantially in the form attached hereto as Exhibit 4.5.2 and to be executed
by the Shareholders, the Purchaser and the Notary (the “Shares
Transfer Deed”).


 


28

















 


4.5.3                        The
Senior Lenders shall transfer the SHL Senior Secured Refinancing Facility
together with any and all rights and obligations under the Senior Facility
Agreements to the Purchaser by means of a transfer certificate, substantially
in the form attached hereto as Exhibit 4.5.3-1
and to be executed by the Senior Lenders and the Purchaser; the Subordinated
Lenders shall transfer the Subordinated Loans together with any and all rights
and obligations under the Subordinated Loan Agreements to the Purchaser by
means of a transfer certificate, substantially in the form attached hereto
as Exhibit 4.5.3-2 and to be
executed by the Subordinated Lenders and the Purchaser (the transfer
certificates attached hereto as Exhibits 4.5.3-1 and 4.5.3-2, collectively, the
“Loans  Transfer
Documents”).


 


4.5.4                        The
Sellers shall deliver to the Purchaser duly executed letters of resignation of
all members of the supervisory board of the Company listed in Exhibit 4.5.4.


 


4.5.5                        The
Company shall have delivered to the Purchaser a certificate, executed by a duly
authorized officer of the Company, acknowledging the transfer of the Shares to
the Purchaser and acknowledging and agreeing with the transfer of the SHL-Loans
to the Purchaser.


 


It being agreed that all Closing Events pursuant to this Section 4.5
shall be regarded as one and single transaction so that, at the option of the
Party having an interest in the carrying out of the specific Closing Event, no
Closing Event shall be deemed to have taken place unless and until all other
Closing Events shall have taken place or waived as provided in this Agreement.


 


4.6                               Waiver of Closing Events


 


The Purchaser may waive the Closing Events set forth in Sections
4.5.2 through 4.5.5 by written notice to the Sellers, and the Sellers may waive
the Closing Event set forth in Section 4.5.1 by written notice to the
Purchaser. The effect of a waiver in each case shall be limited to eliminating
the respective Closing Event and shall not prejudice any claims the relevant
Party may have on the basis of any circumstances relating to the
non-fulfillment of such Closing Event.


 


4.7                               Closing Confirmation


 


After all Closing Events have been performed or waived in accordance
with this Agreement, the Sellers and the Purchaser shall confirm in a written
document to be jointly executed by the Sellers and the Purchaser (the “Closing Confirmation”) that the Closing has
occurred. For the avoidance of doubt, the legal effect of such Closing
Confirmation shall be limited to serve as evidence that the Closing has
occurred, but shall not limit or prejudice in any manner the rights of a Party
arising under this Agreement or under the law.


 


29

















 


4.8                               Right to Withdraw


 


4.8.1                        Unless
the Parties agree otherwise in writing, in the event that:


 


(i) the Closing has not occurred within ninety (90) calendar days
after the Signing Date, or


 


(ii) (a) as of any date, the Closing Condition set forth in Section 4.2.2
is not capable of being satisfied solely due to receipt by the Purchaser of one
or more Final Refusals with respect to one or more of the ECA Facilities, MSN
313 Facilities and/or JOL Facilities, and (b) twenty-eight (28) Business
Days following such receipt of Final Refusals which make the Closing Condition
set forth in Section 4.2.2 not capable of being satisfied, the Purchaser
shall not have granted such waivers and/or Final Refusals shall not have been
withdrawn so that the Closing Condition set forth in Section 4.2.2 is
capable, then or in the future, of being satisfied, either the Sellers, on the
one hand, or the Purchaser, on the other hand, may withdraw from this
Agreement by written notice to the other Parties, unless the non-fulfillment of
the Closing Conditions not being fulfilled, or the non-performance of the
Closing Events not being performed, as the case may be, is within the
control of the Party stating the withdrawal, and provided, that this Section 4.8
shall not apply (and any withdrawal notice shall be deemed void) following the
occurrence of the Closing.


 


4.8.2                        The
effect of a withdrawal shall be limited to eliminating the obligations of the
Parties to consummate this Agreement and shall not prejudice any claims the
withdrawing Party may have on the basis of any circumstances relating to
the failure of the respective other Party to achieve fulfillment of any
covenant or agreement contained in this Agreement. Sections 7, 12, 13 and 14
below shall remain unaffected from any such withdrawal. Any right to withdraw
from this Agreement may only be exercised, in the case of the Sellers, by
joint declaration of Sellers, and in the case of the Purchaser, by declaration
of the Purchaser, and any such withdrawal shall have effect on the entire
Agreement and for all Parties hereto.


 


5.                                      Guarantees
of the Sellers


 


5.1                               Independent
Guarantees


 


The Sellers
hereby represent and warrant to the Purchaser by way of independent guarantees
(selbständige Garantieversprechen)
within the meaning of Section 311 para. 1 of the German Civil Code (BGB) that the statements set out in Exhibit 5.1 hereto including the
disclosure schedules (the “Disclosure
Schedules”) attached thereto (Exhibit 5.1
and the Disclosure Schedule, collectively, the “Guarantees”) are each correct as of the Signing Date and, with
respect to the Guarantees set forth in Sections 1.1, 1.2(a), 1.2(b), 1.3(a),
1.3(b), 2(a), 2(b) and 9 of Exhibit 5.1,
shall also be correct as of the Closing Date (as if made on and as of Closing
Date), and it being further agreed that:


 


30

















 


(i)                                     the Sellers’ aggregate and individual liability
shall be subject to the procedures, modalities and limitations, including the
defined Recoverable Claims, Deductible and Liability Cap, each as set forth in
Sections 6 and 7 below (such procedures, modalities and limitations forming an
integral part of the Guarantees themselves and the allocation of risks
agreed between the Parties),


 


(ii)                                  the liability of each Seller for monetary
damages under the Guarantees and any other provision of this Agreement shall be
limited to the percentage of the total liability set forth in Exhibit 5.1 (ii); and in no
case shall any liability of a Seller constitute a joint and several liability (Gesamtschuld) of all Sellers, but rather
each Seller shall only be held liable separately as an individual and single
debtor (Teilschuldner) for such
percentage of such total liability, and no Seller shall be held liable merely
for reason of one of the other Sellers not having properly fulfilled any of the
Sellers’ obligations under this Agreement, and no Seller’s acts, omissions or
knowledge shall be construed so as to constitute the other Sellers’ acts,
omissions or knowledge, provided, however, that in the event of a Breach by any
Seller of its obligations under Sections 4.3.1, 4.3.2, 4.5, 4.7, 5 (except as
set forth in Section 5.1 (iii), (iv) and (vii)), 6, 7, 8.1, 8.2, 8.4,
8.5, 8.7, 8.9 and 8.10 each Seller shall be liable for such Breach up to such
Seller’s percentage of the total liability set forth in Exhibit 5.1 (ii) (without
affecting the right of the Sellers not being responsible for such Breach to
take recourse against the Sellers having breached their obligations to close).


 


(iii)                               Guarantees under Section 1.2 of Exhibit 5.1 shall be deemed to
have exclusively been given by each of the Shareholders separately and only
with regard to those Shares respectively held by it,


 


(iv)                              Guarantees under Section 9 of Exhibit 5.1 shall be deemed to
have exclusively been given by each of the SHL-Lenders separately and only with
regard to its respective participation in the SHL-Loans,


 


(v)                                 in view of these procedures, modalities and
limitations the Guarantees shall neither constitute a warranty of the condition
(Beschaffenheitsgarantie) within
the meaning of Section 444 of the German Civil Code (BGB) nor an agreement on the condition (Beschaffenheitsvereinbarung) within the meaning of Section 434
(2), first sentence, of the German Civil Code (BGB),


 


(vi)                              any and all Sellers’ liability for defects in title and/or quality under
statutory law (gesetzliche Rechts- und Sachmängelgewährleistung
des Verkäufers) shall be excluded, and


 


(vii)                           no Seller shall have any liability based on fraud (Arglist)
or willful wrongdoings (Vorsatz) solely
on the basis of fraud (Arglist) or
willful wrongdoings (Vorsatz) of any
other Seller unaffiliated with it.


 


31

















 


5.2                               Sellers’ Knowledge


 


If and to the
extent any of the Guarantees is made subject to the “Sellers’ Knowledge” that term shall be limited to the actual
knowledge (positive Kenntnis) as
of the Signing Date of any of the Persons listed on Exhibit 5.2.
However, with respect to the Guarantee set forth in Section 10.1 of Exhibit 5.1
the term “Sellers’ Knowledge” shall be limited to the actual knowledge of any
of Klaus Heinemann, Heinrich Loechteken and Cole Reese.


 


5.3                               Due Diligence


 


The Purchaser,
together with its professional financial, tax, legal and other advisors, has
conducted its own due diligence investigation concerning (i) the Company
and the dAF-Consolidated Group including their assets and their financial, tax,
legal and other affairs, and (ii) the Business. In particular, but without
limitation, the Purchaser has made its independent valuation and/or assessment
of the assets recorded on the Audited Financial Statements 2004, the sufficiency
of certain provisions, accruals and reserves recorded on the Audited Financial
Statements 2004, the economic terms of any Leases, Headleases, Loan Facilities
and Material Contracts as well as of the Business as a whole. Therefore, the
Purchaser expressly confirms that it enters into this Agreement solely based on
its terms (including the Guarantees) and that, except for the Guarantees, they
place no reliance whatsoever on any express or implied representations,
warranties or guarantees of any nature made, or information provided, by the
Sellers or third parties acting, or purporting to act, on behalf of the
Sellers. Further, it is expressly clarified that the Sellers, except for the
Guarantees, do not make or give any other representations, warranties and/or
guarantees. Without limiting the generality of the foregoing, the Purchaser
acknowledges and agrees that, except as specifically included in the
Guarantees, the Sellers make or give no representation, warranty and/or
guarantee and shall not be responsible, with respect to any projections,
estimates or budgets delivered or made available to the Purchaser of future
revenues, future results of operations (or any component thereof), future cash
flows or future financial condition (or any component thereof) or the future
business and operations of the Company or the dAF-Consolidated Group. For the
avoidance of doubt, it is being understood by the Parties that the provisions
set forth in this Section 5.3 shall not inure for the benefit of the
Company’s auditors.


 


6.                                      Remedies


 


6.1                               Breach


 


In the event
that any of the Guarantees should prove to be incorrect or Sellers’ shall have
failed to perform or fulfill any agreement or covenant contained in this
Agreement (a “Breach”), the
Sellers shall have the right – but not the obligation – to place the Purchaser
or, at the Purchaser’s request, alternatively the respective dAF-Consolidated
Company, in the same position the Purchaser or such dAF-Consolidated Company,
respectively, would be in if the Guarantee had been correct (Naturalrestitution – the “Restitution
in Kind”).


 


32

















 


From and after
the Closing Date, the Purchaser shall, within ten (10) Business Days of
obtaining actual knowledge of an actual or potential Breach, notify the Sellers
of such alleged Breach in writing, describing the potential claim in reasonable
detail and, to the extent then possible, state the estimated amount of such
claim and give the Sellers the opportunity to remedy the Breach (each such notice
to be made by the Purchaser a “Breach Notice”).
If the Sellers are unable to achieve this position within thirty (30) Business
Days after having received a Breach Notice, or Losses are suffered or incurred
that have to be compensated by the Sellers under this Section 6.1 despite
the Restitution in Kind, the Purchaser shall be entitled to monetary
compensation (Schadensersatz in Geld)
for the Losses suffered or incurred by any of the Purchaser, the Company or any
dAF-Consolidated Company arising out of the Breach or the facts or
circumstances giving rise to the Breach. If and
to the extent the Company owns directly or indirectly as of the Closing Date (calculated on a look-through basis) less than 100% of the equity of any dAF-Consolidated Company, any monetary
compensation to be paid by the Sellers to the respective dAF-Consolidated
Company or the Purchaser shall be prorated in accordance with the equity
shareholding held by the Company as of the Closing Date in the respective company.


 


6.2                               Cooperation of the Parties


 


If and to the
extent any remedial action by one Party requires the cooperation of any other
Parties, such other Parties shall, at the remediating Party’s request, take all
commercially reasonable steps the remediating Party may reasonably request from
such other Parties, provided, however, that the reasonable costs of such
cooperation shall generally be borne by the Party requesting the cooperation,
unless reasonably agreed otherwise.


 


6.3                               Third Party Claims


 


The Purchaser
shall, within three 3 Business Days, give notice to the Sellers of any claim,
suit, action or proceeding brought or threatened by a third party (including
the Affiliates of the Sellers and the Purchaser other than the Company and the
dAF-Consolidated Companies) including, for the avoidance of doubt, any audits
or examinations by tax, environmental or other Governmental or Regulatory
Authorities in respect of which the Purchaser may raise claims under Section 6.1
against any Seller hereunder (a “Third Party Claim”).


 


In each case
of a Third Party Claim the Purchaser shall (i) make available to the
Sellers a copy of the documents substantiating the Third Party Claim and of all documents relating to the
Third Party Claim, (ii) ensure that Sellers be provided with all
materials, information and assistance they deem relevant in relation to the
Third Party Claim, (iii) be given reasonable opportunity to comment or
discuss with the Purchaser, the Company and/or the relevant dAF-Consolidated
Company any measures that are necessary or appropriate to take or omit in
connection with a Third Party Claim, (iv) give the Sellers an opportunity
to review and comment on reports of, and to participate in, relevant Tax and
social security audits or other measures and receive without


 


33

















 


undue delay copies of all relevant orders (Bescheide) of any
Governmental or Regulatory Authority, (v) fully cooperate with the
Sellers, (vi) provide the Sellers and their advisors with reasonable
access during normal business hours and permit the Sellers and their advisors
to consult with the directors, employees, representatives and advisors of the
Purchaser, the Company and relevant dAF-Consolidated Companies.


 


Any admission of liability made by or on behalf of the Purchaser, the
Company or dAF-Consolidated Companies in relation to the Third Party Claim or
any compromise or settlement, made without the prior written consent of the
Sellers, shall not be binding on the Sellers as to the legal situation or the
underlying facts.


 


The failure of the Purchaser to comply with
its obligations under this Section 6.3 shall release the Sellers from
their respective obligations under Section 6.1 above or any other
liability to the Purchaser for
reason of the Third Party Claim, if and to the extent that the Purchaser’s
failure to comply with the obligations under this Section 6.3 has actually
prejudiced the Sellers in any material respect with respect to such Third Party
Claim.


 


If a Breach occurred, any and all costs and expenses incurred by the
Sellers in defending such Third Party Claim shall be borne by the Sellers. If a
Breach did not occur, any and all costs and expenses incurred by the Sellers in
connection with the defense (including reasonable advisor’s fees) shall be borne
by the Purchaser.


 


7.                                      Limitations
of Liability


 


7.1                               Liability Cap


 


The aggregate
liability of all Sellers under this Agreement shall be limited to
US$100,000,000.00 (in words: one hundred million US Dollars) (the “Liability Cap”), provided that (i) claims based on
fraud (Arglist) or willful
wrongdoings (Vorsatz) by the
Sellers (for the avoidance of doubt, any fraud or willful wrongdoing on the part of
the Persons listed on Exhibit 5.2 shall not, in and of itself, be deemed
to constitute fraud or willful wrongdoing on the part of the Sellers for
purposes of this Agreement), and (ii) claims based on (A) a Breach of
the Guarantees set forth in Sections 1.1, 1.2, 1.3 and 9 of Exhibit 5.1,
or (B) a Breach of the covenants and obligations set forth in Sections 2,
3.1, 4.5, 8.2.1 through 8.2.3 and 8.3 shall not be subject to or counted
against this limitation. In no event shall the aggregate liability of an
individual Seller under or in connection with this Agreement exceed the amount
of the Purchase Price received by such Seller in accordance with Exhibit 3.1,
except for claims based on fraud (Arglist)
or willful wrongdoings (Vorsatz).


 


7.2                               Recoverable Claims; Deductible


 


The Sellers’ liability under Sections 5 and 6
or any other provision of this Agreement with respect to a Breach (in case of a
covenant or obligations of the Sellers under this Agreement only with respect
to Sections 4.3.2, 8.3, 8.4.1


 


34

















 


through 8.4.5, 8.8 and 12.1) shall apply (i) only
with respect to claims which, on a stand-alone basis or as a series of
connected claims (i.e. any claims relating to the same (gleiche)
matter that gave rise to the Breach), exceed the amount of US$2,000,000.00 (in
words: two million US Dollars) (collectively, the “Recoverable
Claims”), provided that any and all Recoverable Claims shall be
covered in their full amount, and (ii) only if, and to the extent, the
Purchaser’s Recoverable Claims, in the aggregate, exceed US$20,000,000.00 (in
words: twenty million US Dollars) (the “Deductible”),
provided, however, that any claims based on (a) fraud (Arglist) and willful wrongdoings (Vorsatz) by the Sellers, (b) a Breach
of the Guarantees set forth in Sections 1.2, 1.3, 2 (other than Sections 2(f),
(j), (n) and (o) which shall be subject to the provisions set forth in this Section 7.2
relating to the Recoverable Claims), 9 or 16 of Exhibit 5.1 shall neither
be subject to the provisions set forth in this Section 7.2 relating to the
Recoverable Claims nor to the Deductible.


 


7.3                               No Double Dip


 


The Parties are in agreement
that where one and the same Loss has been caused by several breaches of this
Agreement or by a breach of several provisions of this Agreement the Party
incurring or suffering such Loss shall be entitled to receive monetary damages
in the amount of such Loss only once.


 


7.4                               Exclusion of Liability


 


The Sellers shall not be liable
for, and the Purchaser shall not be entitled to claim Restitution
in Kind or monetary compensation (Schadenersatz
in Geld) with respect to Breaches and/or Losses caused by a Breach
if and to the extent that:


 


7.4.1                        a matter and the consequences to which the claim of the Purchaser
relates has been taken into account or disclosed in the Audited Financial
Statements 2004, e.g. as a liability (Verbindlichkeit),
by way of a ordinary depreciation (planmäßig
Abschreibung/Wertberichtigung), or
exceptional depreciation (außerplanmäßige
Abschreibung/Wertberichtigung), or depreciation to reflect lower
market values (Abschreibung/Wertberichtigung auf den niedrigeren
beizulegenden Wert), or as an accrual (Rückstellung),
as the case may be;


 


7.4.2                        any Tax for which the Company or any of the dAF-Consolidated Companies
is or will become liable has been or will be actually reduced (including the
present value – calculated in accordance with past accounting practices – of
future Tax savings due to increased Tax losses carried forward) as a result of
the matter giving rise to a claim of the Purchaser under the Guarantees;


 


7.4.3                        the amount of the claim of the Purchaser is recovered or can actually be
recovered from a third party (including under an insurance policy in force on
the Closing Date or thereafter and excluding any such third party who would in
turn be entitled to be indemnified or compensated


 


35

















 


by the Company
or any dAF-Consolidated Company in respect of such recovery), the Purchaser
being bound to first engage its commercially reasonable efforts short of
litigation in recovering any recoverable amounts from such third parties.
Should the amount of the claim of the Purchaser recoverable from a third party
not be recovered through commercially reasonable efforts short of litigation,
the Purchaser shall be entitled to compensation (Restitution
in Kind or monetary compensation) from Sellers under this Section 7,
but shall undertake to assign and transfer to the Sellers any rights and/or
claims the Purchaser may have against such third party;


 


7.4.4                        the Purchaser failed after the Closing Date to use commercially
reasonable efforts to mitigate and to limit the scope of the damage incurred in
accordance with Section 254 German Civil Code (“BGB”), it being understood that the Sellers shall have the
burden of proof with respect to showing that the Purchaser has failed to so
mitigate;


 


7.4.5                        the matter and relevant facts to which the claim of the Purchaser
relates, were actually known by any of the individuals set forth in Exhibit 7.4.5 prior to
notarization of this Agreement, it being understood that the Sellers shall have
the burden of proof with respect to showing that such individuals had any such
actual knowledge, provided, however, that such individuals are deemed to know
the contents of this Agreement, the Exhibits and the Schedules.


 


7.4.6                        the claim of the Purchaser results from, or is increased by,


 


(i)                                     the passing or any change after the Signing
Date of any law, regulation, order or administrative practice of any
Governmental or Regulatory Authority;


 


(ii)                                  any retroactive tax consequences for any time
period up to and including the Closing Date resulting from any restructuring,
undertaking, change in business policy or other measures implemented after
Closing.


 


7.5                               Statute of Limitation


 


7.5.1                        All claims of the Purchaser for Breaches of the Guarantees and the covenants,
agreements and obligations of the Sellers under Sections 4.3.2, 8.2, 8.3, 8.4,
8.5 and 8.7 shall become time-barred on June 30, 2006, save (i) all
claims of the Purchaser in respect of a Breach of Guarantees as set forth in
Sections 1.2, 1.3 and 9 of Exhibit 5.1 which each shall become time-barred
on the seventh (7th) anniversary of the Closing Date, and (ii) all
claims of the Purchaser in respect of a breach of Guarantees as set forth in Section 17
of Exhibit 5.1 which shall – in relation to the time periods covered by
the respective assessment – become time-barred for each Tax six (6) months
after the date of the final, non-appealable assessment concerning the
respective Tax. Claims based on fraud (Arglist)
or willful wrongdoing (Vorsatz)
shall be subject to the statutory limitation period (gesetzliche
Verjährungsfrist).


 


36

















 


7.5.2                        The Purchaser’s obligation to indemnify and hold harmless under Section 2.2
shall become time barred one (1) year after all claims which the Company,
a member of the dAF-Consolidated Group and/or any third party may have
against the SHL-Lenders in connection with the SHL-Loans have become time
barred.


 


7.6                               Suspension and Restart


 


The limitation
period for any claims of the Purchaser under this Agreement shall be suspended
(gehemmt) pursuant to Section 204
BGB by any properly and timely delivered Breach Notice, provided that the
Purchaser commences the proceedings pursuant to Section 14.9 (arbitration)
below within six (6) months after delivery of the Breach Notice, or shall
restart pursuant to Section 212 BGB through a timely notice of the
acknowledgment (Anerkenntnis) of the respective
claim. Section 203 BGB shall not apply.


 


7.7                               Remedies


 


7.7.1                        To the extent permitted by law, other than with respect to a claim of
fraud (Arglist) or willful
wrongdoing (Vorsatz), any further
claims and remedies by or for any Party, other than those claims and remedies
explicitly provided for in this Agreement, irrespective of which nature, amount
or legal basis, are hereby expressly waived and excluded, in particular,
without limitation, any claims under pre-contractual fault (Section 311
para. 2 and 3 BGB), breach of para-contractual and contractual duties (Sections
241 para. 2 and 280 et seq. BGB) or liability in tort (Delikt), any right to reduce the Purchase
Price (Minderung) and (save for Section 4.8
of this Agreement) any right to rescind or otherwise wind-up this Agreement (Rücktritt oder sonstige Rückabwicklung).


 


7.7.2                        In addition to any other remedies a Party may have under this
Agreement, it is agreed that any Party shall be entitled to an injunction or
injunctions (i) to prevent breaches of this Agreement, and (ii) to
enforce specifically the terms and provisions hereof in each case of (i) and
(ii) in the competent courts in Frankfurt am Main, Germany.


 


8.                                      Other
Covenants


 


8.1                               Purchaser’s Access


 


During the
period from the Signing Date through the Closing Date, the Sellers will, and the Shareholders will cause the Company and the
dAF-Consolidated Group as the case may be, and to the extent legally permitted,
to:


 


8.1.1                        promptly provide the
Purchaser and any Person acting as a representative of the Purchaser with
copies of the Daily Receivable Report, Weekly GAM/TCM Report, Weekly Technical
Status Report, Monthly Treasury Report, Monthly Watchlist Report and Quarterly


 


37

















 


Risk
Management Report as and when those reports have been prepared in accordance
with past practice;


 


8.1.2                        provide the Purchaser with reasonable
opportunities to meet upon sixty (60) hours prior written notice or to have
telephone conferences with the managing directors of the Company upon 24 hours
prior written notice, to the Sellers and the Persons as identified in Exhibit 8.1.2, such notice to
include a detailed agenda with all items to be discussed, provided that (i) such
meetings or telephone conferences shall be held during normal business hours, (ii) representatives
of the Sellers shall be given a reasonable opportunity to monitor and/or attend
any or all of such meetings and (iii) the purpose of such meetings shall
be limited to (A) the discussion of the aforesaid reports (including
updates), (B) obtain all appropriate information (on the operations of the
Business) to enable the Purchaser to grant or withhold consent of items covered
in Section 8.4 below in an informed and prudent manner, (C) assist
with the development and preparation of temporary and permanent financing,
which shall however only be implemented upon or after the Closing, and (D) the
matters contemplated in Section 8.9, in each case of (A)-(D) if and
to the extent permitted under applicable antitrust laws; and


 


8.1.3                        furnish the Purchaser copies of further documents reasonably requested
in order to evaluate and discuss the issues set forth in Section 8.1.2.


 


It is being
understood that the Shareholders shall be deemed to have performed all their
obligations under this Section 8.1 by passing the shareholders’ resolution
attached as Exhibit 8.1
without undue delay after the Signing Date, a copy of such resolution to be
sent by registered mail or personally handed over to Mr. Bodo Uebber, as
chairman of the Company’s supervisory board, and Klaus Heinemann and Heinrich
Loechteken as members of the management board as soon as possible (unverzüglich) after passing of such
resolution. If the Purchaser notifies the Sellers of any non-compliance by
management with such resolution Sellers shall, if such complaints are
substantiated, discuss with Purchaser appropriate steps, if any, which could be
taken to address such non-compliance.


 


8.2                               Corporate Matters; Disposals and Other Transactions


 


During the
period from the Signing Date through to and including the Closing Date, the
Shareholders (with respect to Sections 8.2.1, 8.2.2 and 8.2.4 through 8.2.9)
and the SHL-Lenders (with respect to Section 8.2.3) shall not, and the
Shareholders shall cause the Company not to, without the prior written consent
of the Purchaser:


 


8.2.1                        except as disclosed in Exhibit 8.2.1,
take any action with respect to the Company or any member of the
dAF-Consolidated Group regarding (i) the liquidation, dissolution,
corporate reorganization or recapitalization of the Company or any member of
the dAF-Consolidated Group, (ii) any change of the articles of association
of the Company or any


 


38

















 


member of the
dAF-Consolidated Group, (iii) any transformation or conversion of the
Company or any member of the dAF-Consolidated Group or any merger or business
combination of the Company or of any member of the dAF-Consolidated Group with
any Person or any split off of assets and/or liabilities, (iv) any change
in the rights of any Shareholder or attached to any Share (v) the
reduction of the capital stock of the Company, and (vi) the authorization
or issue of any new shares or rights thereto, or of profit rights or other
securities;


 


8.2.2                        sell, transfer, create any encumbrances on or otherwise dispose of the
Shares, or grant any options, warrants, pre-emptive rights, rights of first refusal
or other rights to purchase or obtain the Shares;


 


8.2.3                        sell, transfer, create any encumbrances on or otherwise dispose of the
SHL-Loans, or grant any options, warrants, pre-emptive rights, rights of first
refusal or other rights to purchase or obtain the SHL-Loans;


 


8.2.4                        enter into any new agreements between the Company or any
dAF-Consolidated Company on the one side and advisors and/or consultants on the
other side with respect to services to be provided in direct relation to the
transactions contemplated under this Agreement and having an anticipated fee
volume in excess of US$200,000 in the individual case or US$1,000,000 in the
aggregate, it being agreed, for the avoidance of doubt, that the Company or any
dAF-Consolidated Company shall in any event be allowed to continue – upon the
terms as applied in the past – retaining advisors and/or consultants in
relation to the transactions contemplated under this Agreement, provided that
these advisors and/or consultants have not been retained for the exclusive
benefit of the Sellers (for the avoidance of doubt, the
Parties agree that KPMG, De Brauw and Mc Cann Fitzgerald are permitted
expenditures of the Company and that expenditures for Rothschild and Baker &
McKenzie LLP incurred for services in connection with this transaction are
borne by the Sellers);


 


8.2.5                        except for (i) payment of interest
accruing on the SHL-Loans up to the Closing in accordance with the respective
terms of the SHL-Loan Agreements, (ii) intra-group transactions, and (iii) as
set forth in Exhibit 8.2.5, declare or
pay any dividend or make any hidden profit distributions in respect of the
Shares;


 


8.2.6                        except for dispositions inside the
dAF-Consolidated Group and except for dispositions to the exclusive benefit of
the Company and except as set forth in Exhibit 8.2.6,
authorize, issue, sell or otherwise dispose of any shares of capital stock of
or option with respect of the Company or any dAF-Consolidated Company, or
modify or amend any right of any holder of any outstanding shares of capital
stock of or option with respect to the Company or any dAF-Consolidated Company;


 


8.2.7                        except to the extent required by applicable law or as set forth in Exhibit 8.2.7 and except for
transactions in the ordinary and usual


 


39

















 


course of
business in accordance with past practice, (i) increase in cash or kind
the compensation or compensation arrangements of any director, officer or
employee whose annual compensation is, or after giving effect to such change
would be, US$250,000 (two hundred and fifty thousand US Dollars) or more,
except for bonuses accrued over and in respect of the financial year 2004,
provided for in the Audited Financial Statements 2004 and payable in or about March 2005,
(ii) establish or terminate (partial or complete) or materially modify any
Benefit Plan, or (iii) adopt, enter into any Benefit Plan;


 


8.2.8                        except as set forth in Exhibit 8.2.8,
enter into a transaction constituting (i) any material recapitalization or
corporate reorganization of the Company or any dAF-Consolidated Company (except
for entities in the process of liquidation, merger or dissolution or entities
of which the articles of incorporation or association (or any comparable
instrument under any applicable jurisdiction) are being amended, as listed in Schedule 1.3 (aa) to Exhibit 5.1),
or (ii) any split off, merger or other business combination involving both
(A) the Company or any dAF-Consolidated Company, and (B) any other
Person; or


 


8.2.9                        except for immaterial transactions and agreements in the ordinary course
of business or as set forth in Exhibit 8.2.9,
engage in any transaction or enter into any agreement between any of the
Sellers or their Affiliates (other than the Company or a dAF-Consolidated
Company) on the one hand and the Company or any dAF-Consolidated Company on the
other hand, at economic terms which are not at arm’s-length.


 


It is being
understood that the Shareholders shall be deemed to have performed their
obligations to cause the Company not to take any of the action under this Section 8.2
by passing the shareholders’ resolution attached as Exhibit 8.1 without
undue delay after the Signing Date a copy of such resolution to be sent by
registered mail or personally handed over to Mr. Bodo Uebber, as chairman
of the Company’s supervisory board, and Klaus Heinemann and Heinrich Loechteken
as members of the management board as soon as possible (unverzüglich) after passing of such
resolution. If the Purchaser notifies the Sellers of any non-compliance by
management with such resolution Sellers shall, if such complaints are
substantiated, discuss with Purchaser appropriate steps, if any, which could be
taken to address such non-compliance.


 


8.3                               No Solicitation


 


From the date hereof until
either (i) the Closing Date, or (ii) the date this Agreement is
terminated in accordance with its terms, or (iii) the date the Sellers or
the Purchaser withdraw from this Agreement in accordance with Section 4.8,
as the case may be, the Sellers will not take, nor will they authorize,
cause or knowingly permit any investment banker, financial advisor, attorney,
accountant or other Person retained by or acting for or on behalf of the
Sellers or the Company to take, directly or indirectly, any further action
(including by furnishing confidential information with respect to the


 


40

















 


Company or the dAF-Consolidated
Group or permitting access to the Assets and Properties and Books and Records
of the Company or the dAF-Consolidated Group) to solicit, encourage, consider
or negotiate any offer or inquiry from any Person concerning any proposal for a merger or other business
combination to which the Company or any dAF-Consolidated Company would be a party or any
direct or indirect acquisition of any equity or debt interest in, or a
substantial portion of the assets of, the Company or the dAF-Consolidated Group.


 


8.4                               Interim Management


 


During the
period from the Signing Date through to and including the Closing Date, the
Shareholders shall cause the Company and the dAF-Consolidated Group to conduct
the Business materially in the ordinary and usual course consistent with past
practices, in particular, without limitation to the foregoing, unless the
Purchaser expressly consents otherwise (which consent shall not be unreasonably
withheld), to:


 


8.4.1                        maintain, in all material respects and in accordance with past practice,
the working order and condition of their properties and assets;


 


8.4.2                        maintain the Books and Records of the Company and the dAF-Consolidated
Group in the usual, regular and ordinary manner;


 


8.4.3                        continue to conduct their businesses in the ordinary course materially
consistent with past practice, including but not limited to using all
commercially reasonable efforts to preserve the business organization and
reputations of the Company and the dAF-Consolidated Group and continuing all
current sales, marketing and promotional activities relating to the Business,
and abstain from entering into any transaction other than materially in the
ordinary and usual course of business;


 


8.4.4                        use commercially reasonable efforts to continue to maintain existing
business relationships and goodwill with suppliers, lessees and other
customers; and


 


8.4.5                        use commercially reasonable efforts to keep
available the services of their present officers and employees, it being
understood that neither the Sellers, nor the Company nor the dAF-Consolidated
Group shall be obliged to offer benefits not consistent with past practices.


 


For the avoidance of doubt, it is agreed that
inter alia the following matters
shall be deemed to be conducted in the ordinary and usual course of business
and not to constitute a Material Adverse Effect:


 


(i)                                     accepting deliveries
of Aircraft Assets in accordance with the terms of the Forward Order;


 


(ii)                                  exercising the
cancellation options under the Forward Order; and


 


41

















 


(iii)                               incurring expenditure
in connection with the preparation and implementation of the transactions
contemplated under this Agreement, provided, however, that the provisions set
forth in Section 8.2.4 hereof and of Sections 2(m) and 16 of Exhibit 5.1
shall remain unaffected.


 


It is being understood that the Shareholders
shall be deemed to have performed their obligations under this Section 8.4
by passing the shareholders’ resolution attached as Exhibit 8.1 without
undue delay after the Signing Date, a copy of such resolution to be sent by
registered mail or personally handed over to Mr. Bodo Uebber, as chairman
of the Company’s supervisory board, and Klaus Heinemann and Heinrich Loechteken
as members of the management board as soon as possible (unverzüglich) after passing of such
resolution. If the Purchaser notifies the Sellers of any non-compliance by
management with such resolution Sellers shall, if such complaints are
substantiated, discuss with Purchaser appropriate steps, if any, which could be
taken to address such non-compliance.


 


The Parties agree that the supervisory board
of the Company may between the Signing Date and the Closing resolve on the
granting of incentives (payable by the Company following the Closing) to Mr. Heinemann
and Mr. Loechteken under the debis AirFinance B.V. Managing Directors
Incentive Plan subject to the terms as laid down in a letter dated December 2004
by the Company  to each of the
aforementioned Persons, a copy of such letter (excluding its attachments) has
been furnished to the Purchaser.


 


8.5                               Insurance Coverage


 


The
Shareholders shall cause the Company that:


 


8.5.1                        the Company, the dAF-Consolidated Group and the Business remain insured
until the Closing Date in substantially the same way as they are insured on the
Signing Date (whether that insurance coverage is held by the Company or any
dAF-Consolidated Company or by any other Person for the benefit of the Company
or any dAF-Consolidated Company), that all premiums due for such insurances
whether they are due from the Company, any dAF-Consolidated Company or any
other Person are duly and timely paid at the expense of the Company or the
relevant dAF-Consolidated Company; and


 


8.5.2                        any and all benefits under such insurances paid or payable (whether
before or after the Signing Date) with respect to the business, operations,
employees or Assets and Properties of the Company or any dAF-Consolidated
Company be paid to the Company or the relevant dAF-Consolidated Company or, as
the case may be, the Noteholders according to the
intercreditor agreement dated March 4, 2004 among Dresdner Bank AG in
Frankfurt am Main as agent; Bayerische Landesbank, DaimlerChrysler
Coordination Centre SCS, Dresdner Bank AG Frankfurt am Main, HVB Banque
Luxembourg Société Anonyme, DZ Bank AG Zentral-Genossenschaftsbank,
Kreditanstalt


 


42

















 


für Wiederaufbau as original
lenders; the Travelers Insurance Company, the Travelers Life & Annuity
Company, the Premier Insurance Company of Massachusetts, Metropolitan Life
Insurance Company, Thrivent Financial for Lutherans, Modern Woodmen of America,
Nationwide Life Insurance Company, Nationwide Indemnity Company, Nationwide
Life and Annuity Insurance Company, the Guardian Life Insurance Company of
America, Fort Dearbon Life Insurance Company, the Guardian Insurance &
Annuity Company, Inc. and Family Service Life Insurance Company as the
original note holders; ABN AMRO Bank NV as security agent; debis AirFinance
B.V. as company and debis AirFinance Funding 1 B.V. as issuer.


 


It is being understood that the Shareholders
shall be deemed to have performed their obligations under this Section 8.5
by passing the shareholders’ resolution attached as Exhibit 8.1 without
undue delay after the Signing Date, a copy of such resolution to be sent by
registered mail or personally handed over to Mr. Bodo Uebber, as chairman
of the Company’s supervisory board, and Klaus Heinemann and Heinrich Loechteken
as members of the management board as soon as possible (unverzüglich) after passing of such
resolution. If the Purchaser notifies the Sellers of any non-compliance by
management with such resolution Sellers shall, if such complaints are
substantiated, discuss with Purchaser appropriate steps, if any, which could be
taken to address such non-compliance.


 


8.6                               Use of Certain Names and Designations


 


Commencing as
soon as is commercially practicable after Closing and in any event not more
than 6 (six) months following the Closing, the Purchaser shall refrain, and the
Purchaser shall cause the Company and the dAF-Consolidated Group to refrain,
from any use whatsoever of “debis” or any other similar designation as part of
the corporate name (Firma),
letterhead, promotional or any other material, it being agreed that,
immediately following the Closing, the Purchaser shall procure that all
corporate and other measures be taken to remove the designation debis from the
corporate name (Handelsnaam) of the Company and
dAF-Consolidated Companies. Furthermore, the Purchaser shall, as promptly as
possible, cause the Company and all dAF Consolidated Companies to refrain from
making any reference whatsoever in their correspondence, invoices, brochures,
stationery and/or any other printed document or homepage or other carriers
of electronic data to any (previous) affiliation with the DaimlerChrysler group
of companies.


 


8.7                               Amounts Drawn Under the Revolving Facility


 


It is being
understood by the Parties that the Shareholders are not permitted to and are
under no obligation to give any instructions by way of supervisory board or
shareholders’ resolution to the Company to draw or not to draw amounts under
the Revolving Facility.


 


43

















 


8.8                               Further Assurance


 


The Parties
agree to perform (or procure the performance of) all further acts and
things, and execute and deliver (or procure the execution and delivery of) such
further documents, as may be required by law or as the other Parties may reasonably
require, whether on or after the Closing, to implement and/or give effect to
this Agreement and the transaction contemplated by it.


 


8.9                               Covenants relating to the Waivers


 


During the period from the Signing Date
through to and including the Closing Date, the Purchaser shall use commercially
reasonable best efforts, in conjunction with the Company, to obtain the Waivers
necessary to satisfy the Closing Conditions set forth in Section 4.2.2, in
particular by making as soon as reasonably practicable presentations to the
parties that are required to provide Waivers under Section 4.2.2 to the
extent that the Company or the appropriate Sellers shall have arranged meetings
with such parties in coordination with the Purchaser. During the period from
the Signing Date through to and including the Closing Date, the appropriate
Sellers (or their appropriate Affiliates) shall use commercially reasonable
best efforts to provide such support and assistance to the Company and/or the
Purchaser as the Purchaser and/or the Company may reasonably request for
purposes of facilitating or accelerating the satisfaction of the Closing
Conditions set forth in Section 4.2.2. Notwithstanding the foregoing, in
no event shall any Seller, the Company or the Purchaser be required pursuant to
the foregoing to (i) incur any cost, expense or Loss, or pay any fee or
similar amount, related thereto (other than (A) travel expenses and  fees and expenses for legal advice and other
professional or consulting services, and (B) fees or other amounts payable
by the Company or any dAF-Consolidated Company in the amount of up to
US$1,000,000 (in words: one million US Dollars in the aggregate) in the aggregate
for all of the ECA Facilities, the MSN 313 Facility and the JOL Facilities and,
(ii) agree to any change, amendment, supplement or other modification to
the terms (including, for the avoidance of doubt, any requirement to provide
any additional security) of the ECA Finance Documents, MSN 313 Finance
Documents or the JOL Finance Documents (other than any non-economic change,
amendment, supplement or other modification which is of an immaterial or
non-substantive nature), or (iii) agree to any change in the terms of the
transactions contemplated by this Agreement or the financing thereof, including
any requirement  to contribute more
equity financing to the Company or such financing.


 


8.10                        Suspension of
implementation of portions of the collateral package


 


During the period from the Signing Date
through to and including the Closing Date, the Sellers shall (i) suspend
any further implementation of the collateral package for the loans under the
SHL Senior Secured Refinancing Facility as it relates to (a) the creation
of local law or English law mortgages on any Aircraft, (b) the collateral
assignment by the Company or any dAF-Consolidated Company of Leases and
insurance in respect of any Aircraft, and any acknowledgments or consents to be
given by Lessees in connection


 


44

















 


therewith, and (c) the collateral
assignment by the Company or any dAF-Consolidated Company of any of their right
title and/or interest in any German leveraged lease transaction in respect of
any Aircraft, and (ii) subject to clause (i) above, continue with the
implementation of the collateral package for the loans under the SHL Senior
Secured Refinancing Facility as contemplated by the Senior Facility Agreement.


 


9.                                      Guarantees
of the Purchaser


 


9.1                               Independent Guarantee


 


The Purchaser warrants to the Sellers in the form of an
independent guarantee pursuant to Section 311 para. 1 BGB that the
statements set forth hereafter are true and correct:


 


9.1.1                         The Purchaser is duly incorporated, in good standing and validly
existing under the laws of Luxembourg and has the power and authority to
execute this Agreement and to perform its obligations thereunder. No
bankruptcy proceedings or other proceedings under applicable law providing
protection against enforcement by creditors has been opened over the Purchaser’s
assets and no circumstances exist which would require the Purchaser or the
Purchaser’s management, board or shareholders to apply for the opening of such
proceedings.


 


9.1.2                        The execution and consummation of this Agreement and the performance of
the transactions contemplated hereunder does not and will not violate any
judicial or governmental injunctive or permanent order (gerichtliche oder behördliche Verfügung)
to which the Purchaser is bound, any provision of the Purchaser’s articles of
association or bylaws or other governing instruments or any legally effective
resolution of the Purchaser’s management or any board or shareholders’ meeting.


 


9.1.3                        The Purchaser has sufficient immediately available funds or binding
financing commitments to pay the Purchase Price and to make all other payments
required to be made under or in connection with this Agreement.


 


9.1.4                        As of the date hereof, there is no action, suit, investigation or other
proceedings pending against or, to the Purchaser’s best knowledge, threatened
against or affecting the Purchaser which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the execution or consummation of
this Agreement or the performance of the transactions contemplated hereunder.


 


9.1.5                        This Agreement
has been duly and validly executed and delivered by the Purchaser and
constitutes a legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms.


 


45

















 


9.2                               Indemnity


 


In the event that the
Purchaser is in breach of any guarantee under Section 9.1 or of any
covenant or obligation set forth in this Agreement, the Purchaser shall
compensate any Losses incurred by the Sellers as a result thereof. Sections
6.1, 7.4.2, 7.4.4 and 7.4.6 (it is being understood that for purpose of the
repetition of the guarantees under Sections 9.1.1, 9.1.2 and 9.1.5 as of the
Closing Date the reference date in Section 7.4.6 (i) shall be the
Closing Date and not the Signing Date) shall apply mutatis mutandis.


 


10.                               [Reserved]


 


11.                               Non
Solicitation


 


11.1                            Each Seller will, for a period of two (2) years
from the Closing Date, refrain from, and each Seller will, for such period, use
its commercially reasonable efforts to cause its Subsidiaries (other than
Subsidiaries which are not subject to instructions by its shareholders due to
its legal nature, articles of association or equivalent corporate documents or
shareholders’ agreements) to refrain from:


 


(i)                                     actively
and intentionally soliciting (abwerben) any
Person who within the prior six (6) months had been an officer or employee
of the Company or any of the dAF-Consolidated Companies, unless such officer or
employee (A) resigns voluntarily (without any solicitation from the
Shareholders or any of their Subsidiaries except for general job solicitations
in newspapers or other media or conducted through an employment recruiting
agent on behalf of a Seller or an Subsidiary of a Seller), or (B) is
terminated by the Company or any of the dAF-Consolidated Companies after the
Closing Date;


 


(ii)                                  actively
and intentionally causing or attempting to cause any client, customer or
supplier of the Company or any of the dAF-Consolidated Companies existing as of
the Closing Date to terminate or materially reduce its business with the
Company or the dAF-Consolidated Companies (it being understood, however, that
the Sellers and their respective Affiliates may in their own free
discretion and at any time decide to terminate any existing or future business
relationship with the Company or any of the dAF-Consolidated Companies); and


 


(iii)                               intentionally
disclosing (unless required by agreements with credit agencies and similar
bodies, by judicial or administrative order or under law and save for any
disclosure to Sellers’ auditors, legal or other advisers who are bound to
confidentiality under applicable professional rules) any non-public,
confidential or secret information of or relating to the Company or any of the
dAF-Consolidated Companies or any of their respective clients, customers or
suppliers (each in their capacity as such).


 


46

















 


11.2                          The
Parties hereto acknowledge and agree, for the avoidance of doubt, that the
Purchaser may request injunctive relief in accordance with the provisions
of the German Code on Civil Proceedings (Zivilprozessordnung – ZPO).


 


12.                               Public
Announcements and Confidentiality


 


12.1                        Public Announcement


 


Each of the
Parties undertakes that prior to the Closing Date it will not make an
announcement in connection with this Agreement unless required by applicable
law or stock exchange regulations unless the other Parties hereto have given
their respective consent to such announcement, including the form of such
announcement, which consents may not be unreasonably withheld and may be
subject to conditions. If and to the extent any announcement or disclosure of
information regarding the subject matter of this Agreement is to be made under
applicable laws, in particular any applicable stock exchange rules, the Parties
being concerned shall not disclose any such information without prior
consultation with the other Parties. However, it is agreed that individual
terms and conditions of this Agreement, in particular, but without limitation,
the Purchase Price, shall in no event be disclosed unless there is a mandatory
requirement under applicable law or capital markets regulations. Further, the
Purchaser shall be entitled to disclose the terms and conditions of this
Agreement to any banks and its advisors financing or refinancing the Purchase
Price subject to a market-standard confidentiality agreement to be entered into
between such financing sources and, to the extent not bound by professional
confidentiality obligations, advisors for the direct benefit of the Sellers (echter Vertrag zugunsten Dritter).


 


12.2                        Confidentiality
Agreement


 


For the
avoidance of doubt the Parties agree that the confidentiality agreement as
concluded between the Sellers and Cerberus European Investment LLC on October 15,
2004 shall continue subject to its terms. The Purchaser agrees to abide by the
terms of such confidentiality agreement as if it was a party to it.


 


13.                               Notices


 


13.1                           Any notice or other
communication to be given by one Party to any other Party under, or in
connection with, this Agreement shall be in writing and signed by or on behalf
of the Party giving it. It shall be served by sending it by fax to the number
set out in Section 13.2 or as the case may be, Section 13.3, or
delivering it by hand, or sending it by pre-paid recorded delivery, special
delivery or registered mail, to the address set out in Section 13.2. Any
notice so served by hand, fax or post shall be deemed to have been duly given:


 


13.1.1                  in the case of delivery by hand, when
delivered;


 


47

















 


13.1.2                  in the case of fax, at the date of
transmission shown both by the report of transmission and the report of
receipt; and


 


13.1.3                  in the case of prepaid recorded delivery
or registered mail on the date noted on the return receipt.


 


13.2                           The addresses and fax
numbers of the parties for the purpose of Section 13.1 are as follows:


 


If to the
Sellers, to:


 


DaimlerChrysler
Services AG


Attn. Gösta Dobler


Eichhornstraße 3


10875 Berlin


Germany


Telefax-No. +49
30 2554 1234


 


DaimlerChrysler
Aerospace AG


Attn. Ursula Gruss


DaimlerChrysler
AG


Epplestraße 225


70567 Stuttgart


Germany


Telefax-No. +49
711 17 58190


 


DaimlerChrysler
AG


Attn. Ursula
Gruss


Epplestraße 225


70567 Stuttgart


Germany


Telefax-No. +49
711 17 58190


 


Bayerische Hypo-
und Vereinsbank AG


and HVB Banque
Luxembourg SA


Attn. Dr. Steffi
Habermeier and René Warzenetz


Arabellastraße
14


81925
Munich


Germany


Telefax-No. +49 89 378 43315


 


Bayerische
Landesbank


Attn. Thomas
Fehrenbach


Brienner Str. 18


80333 Munich


Germany


Telefax-No. +49 89 2171 25597


 


48

















 


BLB
Beteiligungsgesellschaft Beta mbH


Attn. Mr. Seidler


Brienner Str. 18


80333 Munich


Germany


Telefax-No. +49
89 2171 21134


 


Dresdner Bank AG


Attn. Michael
Stuhlmann and Thomas Wiegand


Platz der Einheit
2


60301 Frankfurt
am Main


Germany


Telefax-No. +49
263 18306


 


DZ BANK AG
Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main


Attn. Sibylle
Jakobs/Dr. Martin Baranowski


Platz der
Republik


60265 Frankfurt
am Main


Germany


Telefax-No. +49
69 7447 6300/6645


 


DZ
Beteiligungsgesellschaft mbH Nr. 6


Attn. Mathias
Kurz


Platz der
Republik


60325 Frankfurt
am Main


Germany


Telefax-No. +49
69 7447 7754


 


KfW


Attn. Dept. RE
Mr. Vay / Dept. X4b2 Mrs. Hockmann


Palmengartenstraße
5-9


60325 Frankfurt
am Main


Germany


Telefax-No. +49
69 7431 4542/4110


 


in each case
with a copy to:


 


Baker &
McKenzie


Attn. Dr. Dirk
Oberbracht


Bethmannstraße
50-54


60311
Frankfurt/Main


Germany


Telefax-No. +49
69 29908108


 


If to the
Purchaser, to:


 


FERN S.à r.l.


Attn. Robert
Warden


c/o Cerberus
Capital Management, L.P.


299 Park
Avenue


New York, New
York 10171


U.S.A.


 


49

















 


with a copy
to:


 


Milbank, Tweed,
Hadley & McCloy LLP


Attn. Michael
W. Goroff


69 Old Broad
Street


London, EC2M
1QS


UK


Telefax-No. +44
207 448 3029


 


or to such
other recipients or addresses which may be notified by any Party to the
other Parties in the future in writing.


 


13.3                           Notices which need to be sent to the Purchaser may also be served
to the Purchaser’s agent of process being


 


Milbank,
Tweed, Hadley & McCloy LLP


Attn. Dr. Peter
Nussbaum


Maximilianstraße
15


80539 München


Germany


Telefax-No. +49 (0)89 255 59 3736.


 


Further,
Purchaser hereby irrevocably authorizes and instructs


 


Milbank, Tweed, Hadley & McCloy LLP


Attn. Dr. Peter
Nussbaum


Maximilianstraße
15


80539 München


Germany


Telefax-No. +49
(0)89 255 59 3736


 


to receive and
accept on its behalf and its name any services (Zustellungen) of any judicial documents and summons (Zustellungsbevollmächtigter).


 


14.                               Miscellaneous


 


14.1                        Costs


 


Unless
expressly stated otherwise in this Agreement, all costs, including fees,
expenses and charges, each incurred in connection with the preparation,
negotiation, execution and consummation of this Agreement or the transactions
contemplated herein, including, without limitation, the fees and expenses of
professional advisors, shall be borne by the Party commissioning such costs.
All notarial fees and all fees and charges relating to the Shares Transfer
Deeds and Loan Transfer Documents, for any required merger control filing, for
obtaining any other approval, if any, from Governmental or Regulatory
Authorities, for filings to and registration with public registers, if any, as
well as any and all transfer Taxes and documentary Taxes accruing in


 


50

















 


connection
with the execution and consummation of this Agreement or the transactions
contemplated herein shall be borne by the Purchaser.


 


14.2                        Entire Agreement


 


This Agreement
and its Exhibits and Disclosure Schedules shall comprise the entire agreement
between the Parties concerning the subject matter hereof and shall supersede
and replace all prior oral and written declarations of intention made by the
Parties in respect thereof. All Exhibits and Disclosure Schedules to this
Agreement constitute an integral part of this Agreement. In the case of a
conflict between any Exhibit and/or Disclosure Schedule and the
provisions of this Agreement, the provisions of this Agreement shall prevail.


 


14.3                        Amendments


 


Any amendments
to this Agreement (including amendments to this clause) shall be valid only if
made in writing, unless a stricter form is required by mandatory law.


 


14.4                        Headings; German
or Dutch Terms


 


The headings
in this Agreement are inserted for convenience only and shall not affect the
interpretation of this Agreement. All words used in this Agreement will be
construed to be of such gender or number as the circumstances require. The word
“including” shall not limit the preceding words or terms. If provisions in this
Agreement include English terms after which either in the same provision or
elsewhere in this Agreement German or Dutch terms have been inserted in
brackets and/or italics, the respective German or Dutch terms alone and not the
English terms shall be authoritative for the interpretation of the respective
provisions.


 


14.5                        Assignment;
Set-Off; Withholding


 


Without the
written consent of the other Parties, no Party shall be entitled to assign any
rights or claims under this Agreement except that (i) the Purchaser may assign
any or all of its rights under this Agreement (for the avoidance of doubt, such
assignment shall not relieve Purchasers from any liability and obligation) to
any entity or entities, formed or acquired for the purpose of making the
acquisition contemplated by this Agreement, which are wholly owned and
controlled by funds or accounts managed by Cerberus Capital Management, L.P., provided
that any such entity or entities agree to be bound by all of the terms,
conditions and provisions contained in this Agreement and (ii) the
Purchaser may assign any or all of its rights (for the avoidance of doubt,
such assignment shall not relieve Purchasers from any liability and obligation)
to financing sources providing financing in connection with the transactions
under this Agreement, provided that such assignment is exclusively made for the
purpose of granting security to such financing sources and the Sellers are
notified in writing in advance of such assignment and the assignee accepts the
notice provisions in Section 13 and the arbitration rules set forth
in Section 14.9. No such assignment referred to in clause (i) or


 


51

















 


(ii) above
shall relieve the Purchaser and/or any assignee under clause (i) above
from any liability. Any right of the Parties to set-off and/or to withhold any
payments due under this Agreement shall be excluded unless the respective Party’s’
respective counter claim is undisputed or has been confirmed by final court
decision.


 


14.6                        Foreign
Currencies


 


Any currency
conversions shall be determined using the European Central Bank (ECB)’s fixing
rates as published on the ECB’s website (www.ecb.int) shortly after 2.15 p.m.
CET on the day which is one Business Day prior to the date on which the
respective payments become due and payable, or on any other day or time as
agreed by the Parties in this Agreement or otherwise. When such rates are not
available on such date, Reuters world spot rates (mid rate on page FX=)
taken as close as possible to 2.15 p.m. CET shall be used.


 


14.7                        Calculation of
Interest


 


Except as
otherwise provided in this Agreement, interest shall be calculated from the
date such interest is due and payable until the Business Day prior the payment
date, in each case on a three hundred sixty (360) days basis.


 


14.8                        Governing Law


 


Subject to the next
succeeding sentence, this Agreement shall be governed
by, and construed in accordance with, the laws of the Federal Republic of
Germany excluding the rules of conflicts of laws and the UN Convention on
Contracts for the International Sale of Goods. The transfer in rem of the
Shares shall be governed by Dutch law.


 


14.9                        Arbitration


 


Any and all disputes arising out of or in connection
with this Agreement, including disputes on its validity, shall be finally
settled under the Rules of Arbitration of the International Chamber of
Commerce by three arbitrators appointed in accordance with the said Rules.


 


In deviation from the Rules of Arbitration of the
International Chamber of Commerce, the chairman of the Arbitral Tribunal shall
only be appointed by the International Court of Arbitration of the
International Chamber of Commerce if the two arbitrators nominated by the
Parties fail to nominate the chairman within thirty (30) days after their
nomination. When making their nomination, the arbitrators or the International
Court of Arbitration shall take into account concurring proposals by the
Parties.


 


52

















 


The place of the arbitration proceedings is Frankfurt
am Main, Germany. The language of the arbitration proceedings is English.
Competent Court of Appeals within the meaning of Section 1062 of the
German Code on Civil Procedures (ZPO) shall be
the Court of Appeals (Oberlandesgericht)
in Frankfurt am Main, Germany.


 


14.10                 Severability


 


Should any provision of this
Agreement be or become invalid or unenforceable as a whole or in part, the
validity, effectiveness and enforceability of the other provisions of this
Agreement shall not be affected thereby. In such case, the Parties agree to recognize
and replace any such invalid or unenforceable provision by such valid and
enforceable provision as comes closest to the economic intent and purpose of
such invalid, or unenforceable provision as regards subject-matter, amount,
time, place and extent. The aforesaid shall apply mutatis mutandis to any inadvertent incompleteness of this
Agreement.


 


53














 


GUARANTEES


 


Any and all Guarantees set forth in this
Exhibit 5.1 are given subject to the Sellers’ Knowledge except for the
Guarantees set forth in Sections 1.1, 1.2 (a) (except as otherwise stated
therein), 1.2 (b) (except as otherwise stated therein), 1.2 (c) (except as
otherwise stated therein), 2 (a) (except as otherwise stated therein), 2 (b)
and 9 (except as otherwise stated therein) of this Exhibit 5.1.


 


1.                                      THE SELLERS, THE
COMPANY AND THE DAF-CONSOLIDATED GROUP


 


1.1                                 The Sellers


 


Each of the Sellers has obtained
all corporate authorisations and all other applicable governmental, statutory,
regulatory or other consents, licences, authorisations, waivers or exemptions
required to empower it to enter into and perform its obligations under this
Agreement except for those set forth in Sections 4.2.1 and 4.2.2 of this
Agreement. This Agreement has been duly and validly executed by the Sellers and
constitutes legal, valid and binding obligations of the Sellers enforceable
against the Sellers in accordance with its terms (subject to limitations on
enforceability imposed by equitable principles limiting the right to obtain or
seek specific performance or by other equitable remedies or by applicable
corporate, bankruptcy or insolvency laws and related decisions affecting
creditors’ rights generally).


 


1.2                                 The Company


 


(a)                                  The Company is duly incorporated, organised and
validly existing under the laws of The Netherlands as a “besloten
vennootschap met beperkte aansprakelijkheid” (private limited
liability company). It has not been dissolved, liquidated, declared bankrupt (failliet) or granted a suspension of payments (surséance van betaling) nor, to the Sellers’ Knowledge, is
such a procedure pending. The Company has full corporate power and authority to
conduct its business as and to the extent now conducted and to own, use and
lease its Assets and Properties. The Company has not ceased to pay its debts
within the meaning of Article 1(1) Dutch Bankruptcy Act.


 


(b)                                 The Company has not filed a request for the
opening of insolvency or bankruptcy proceedings nor, to the Sellers’ Knowledge,
has any third party applied for a declaration of bankruptcy or any such similar
arrangement for the Company under the laws of any applicable jurisdiction. The
Company is not involved in negotiations with any one or more of its creditors
(other than the Sellers), with respect to the rescheduling of its debts. Schedule 1.2 (b) comprises true and
up to date copies of the articles of association of the Company as in effect on
the date hereof and the Closing Date. The Company is not a “structure company”
within the meaning of Article 2: 154 Dutch Civil Code, nor has it, nor should
it have filed a statement within the meaning of Article 2:153(1) Dutch Civil
Code that it meets the criteria for a “structure company”. The
Shares constitute the entire issued share capital of the Company, and each
Shareholder is the legal and beneficial owner of such


 

















 


number of Shares as set forth in
Section 1.1 of this Agreement free from all Security Interests, options or other third party rights (including rights
of pre-emption) of any nature whatsoever except for such options or other third
party rights (including rights of pre-emption) in favor of the shareholders of
the Company as set forth in the articles of association of the Company and to
be waived at the Closing (to the extent required to effect the transfer of
unencumbered title in all of the Shares to the Shares-Purchaser). Except for
the shares identified in Schedule 1.2 (b)
(that have been partially paid up in the amounts set out in such schedule
pursuant to an agreement with the Company as referred to in Article 2:191(1)
Dutch Civil Code) the Shares are duly authorized, validly issued, outstanding,
fully paid-up non-assessable (nicht nachschusspflichtig)
and the Shareholders have no further obligation under Dutch law with respect to
the Shares (other than to fully pay the par value thereof which has not been
fully paid up). Upon the delivery of the Shares Transfer Deed in the manner
provided in Section 2.3 of the Agreement and satisfaction of any conditions
precedents explicitly set forth therein or waiver of such conditions precedent
in accordance with the Shares Transfer Deed, the Shares-Purchaser will
be transferred good and valid title to the Shares, free and clear of all
Security Interests. The Company has not granted any profit rights to any person
(other than the Sellers in their capacity as holders of the Shares and/or in
their capacity as lenders of the SHL-Loans). The Company has not co-operated to
the issuance of depositary receipts.


 


(c)                                  The Company has no Directors (bestuurders), Supervisory Directors’ (commissarissen)
or, to the Sellers’ Knowledge, proxyholders (procuratiehouders)
or their equivalents under any jurisdiction other than the Netherlands, other
than the persons named in Schedule 1.2 (c).
Upon their resignation at Closing, the Supervisory Directors shall not have any
claim against the Company, except for claims for ordinary consideration and
reimbursement of expenses payable by the Company in relation to the performance
of the Supervisory Directors’ duties through to the Closing and except for any
claims that they may have under the directors and officers liability insurance
policy taken out by the Company.


 


1.3                                 The dAF-Consolidated Group


 


(a)                                  Except as set forth in Schedule 1.3 (a), each dAF-Consolidated
Company is duly incorporated, organised and validly existing under the laws of
the jurisdiction of its incorporation, has not been dissolved, liquidated,
declared bankrupt (failliet) or
granted a suspension of payments (surséance van betaling),
nor have any similar measures been taken under any applicable law. None of the dAF-Consolidated
Companies has filed a request for the opening of insolvency or bankruptcy
proceedings nor has any third party applied for a declaration of bankruptcy or
any such similar arrangement for any of the dAF-Consolidated Companies under
the laws of any applicable jurisdiction. Each dAF-Consolidated Company has full
corporate power and authority to conduct its business as and to the extent now
conducted and to own, use and lease its Assets and Properties. Schedule 1.3 (a)  comprises true and
up to date copies of the articles of association, regulations and by-laws or
other comparable organizational documents of each dAF-Consolidated Company as
in effect on


 


2

















 


the
date hereof except for those relating to single Aircraft owning special purpose
entities, dormant entities, entities in the process of liquidation, merger or
dissolution or entities of which the articles of incorporation or association
(or any comparable instrument under any applicable jurisdiction) are being
amended, as listed in Schedule 1.3 (aa).


 


(b)                                 Except as set forth in Schedule
1.3 (b) and except for Permitted Security Interests, the Company
(or a trustee for its benefit) is the (direct or indirect) sole legal and
beneficial (wirtschaftlicher) owner of the entire
issued share capital of each of the dAF-Consolidated Companies free from all
Security Interests, options or other third party rights (including rights of
pre-emption) of any nature whatsoever. Except for the Associated Companies,
neither the Company nor any of the dAF Consolidated Companies holds, or over
the past three (3) years has held any equity interest in any other Person.
Neither the Company nor any of the dAF Consolidated Companies is a group
company within the meaning of Article 2:24b Dutch Civil Code (groepsmaatschappij in de zin van artikel 2:24b BW) of any
other company (other than the Company or any of the dAF-Consolidated Companies)
and none of them is a party to any partnership agreement (v.o.f.,
c.v., maatschap or equivalent) (other than Intra-Group Agreements).


 


(c)                                  Except for the persons named in Schedule 1.3 (c) the dAF
Consolidated Companies have no Directors (bestuurders) or
proxyholders (procuratiehouders) or their
equivalents under any jurisdiction other than The Netherlands.


 


2.                                      OPERATION SINCE JANUARY
1, 2005


 


In the
period from January 1, 2005 through to and including the Signing Date (or, in
the case of clauses (a) and (b) of this Section 2, through to and including
Closing Date), except as listed in Schedule 2, the business of the
Company and each dAF-Consolidated Company has in all material respects been
carried on in the ordinary and usual course of business consistent with past
practice and there has not occurred any of the following:


 


(a)                                  except for (i) payments of interest accrued up
to and including December 31, 2004 on the SHL-Loans in the aggregate amount of
up to US$ 13,305,196.81 (in words: thirteen million three hundred and five
thousand one hundred and ninety six US Dollars and 81 Cents), (ii) payment of
interest accruing on the SHL-Loans from the period as from the Effective Date
up to the Closing in accordance with the respective terms of the SHL-Loan
Agreements, and (iii) intra-group dividends, any declaration, setting aside or
payment of any dividend or other distribution in respect of the shares of the
Company or - subject to the Sellers’ Knowledge - any dAF-Consolidated Company
not wholly owned (directly or indirectly) by the Company, or any direct or
indirect capital reduction, purchase or other acquisition by the Company or –
subject to the Sellers’ Knowledge - any dAF-Consolidated Company of capital
stock of or any option with respect to the share capital of the Company or –
subject to the Sellers’ Knowledge - any dAF-Consolidated Company not directly
or indirectly wholly owned by the Company or any dAF-Consolidated Company (or a
trustee for its benefit). For the avoidance of doubt, it is expressly clarified


 


3

















 


that
debis AirFinance Ireland plc shall be deemed to be wholly owned for the
purposes of this Section 2 (a);


 


(b)                                 except for dispositions inside the
dAF-Consolidated Group and except for dispositions to the exclusive benefit of
the Company, any authorization, issuance, sale or other disposition by the
Company or any dAF-Consolidated Company of any shares of capital stock of or
option with respect of the Company or any dAF-Consolidated Company, or any
modification or amendment of any right of any holder of any outstanding shares
of capital stock of or option with respect to the Company or any
dAF-Consolidated Company;


 


(c)                                  (i) any increase in cash or kind in the
compensation or compensation arrangements of any director, officer or employee
of the Company or any dAF-Consolidated Company whose annual compensation is, or
after giving effect to such change would be, US$250,000 (two hundred and fifty
thousand US Dollars) or more, except for bonuses accrued over and in respect of
the financial year 2004, provided for in the Audited Financial Statements 2004
and payable in or about March 2005, and (ii) any establishment or termination
(partial or complete) or material modification of any Benefit Plan, or (iii)
any adoption, entering into or becoming bound by any Benefit Plan; in each case
of (i) through (iii) except to the extent required by applicable law;


 


(d)                                 except for transactions made in connection with the Forward Order, (i)
incurrence by the Company or any dAF-Consolidated Company of additional
indebtedness (other than trade accounts payable) in an aggregate principal
amount exceeding US$1,000,000 (one million US Dollars) (net of any amounts
discharged during such period), or (ii) any voluntary purchase, cancellation,
prepayment or complete or partial discharge in advance of a scheduled payment
date with respect to, or waiver of any right of the Company or any
dAF-Consolidated Company under, any indebtedness (other than trade accounts
payable and trade accounts receivable) of or owing to the Company or any
dAF-Consolidated Company in an amount in excess of US$1,000,000 (one million US
Dollars).


 


(e)                                  any individual physical damage, destruction or
other casualty loss (whether or not covered by insurance) affecting any of the
Assets and Properties of the Company or any dAF-Consolidated Company in an
amount exceeding US$1,000,000 (one million US Dollars), except for such
individual physical damage, destruction or other casualty loss to any Aircraft
Asset that has not been notified in writing to the Company or any
dAF-Consolidated Company by any Lessee;


 


(f)                                    any material change in (i) any accounting,
financial reporting, pricing, credit, allowance or Tax practice or policy of
the Company or any dAF-Consolidated Company, or (ii) any method of calculating
any bad debt, contingency or other reserve of the Company or any
dAF-Consolidated Company for accounting, financial reporting or Tax purposes;


 


(g)                                 except for write-offs or write-downs consistent
with past accounting practices and except for write-offs or write-downs of
goodwill, any write-off or write-down


 


4

















 


of or
any determination to write off or write down any of the Assets and Properties
of the Company or any dAF-Consolidated Company to be made under GAAP in excess
of US$1,000,000 (one million US Dollars);


 


(h)                                 any acquisition or disposition of, or
incurrence of a Security Interest (other than a Permitted Security Interest)
on, any Assets and Properties of the Company or any dAF-Consolidated Company,
other than in the ordinary course of business consistent with past practice or
in an amount individually or in the aggregate not exceeding US$1,000,000 (one million
US Dollars);


 


(i)                                     any material (i) recapitalization or corporate
reorganization of the Company or any dAF-Consolidated Company (except for
entities in the process of liquidation, merger or dissolution or entities of
which the articles of incorporation or association (or any comparable
instrument under any applicable jurisdiction) are being amended, as listed in Schedule 1.3 (aa)), or (ii) split off, merger or other
business combination involving both (A) the Company or any dAF-Consolidated
Company, and (B) any other Person;


 


(j)                                     except as disclosed in the Material Contracts
Schedule and except for any amendments, modifications, waivers or consents made
in the ordinary and usual course of business consistent with past practice, any
material amendment, modification or granting of a waiver under or giving any
consent with respect to (i) any contract which is required to be disclosed in
the Material Contract Schedule or (ii) any material license or permit held by
the Company or any dAF-Consolidated Company;


 


(k)                                  except for (i) capital expenditures or
commitments relating to the Forward Order, and (ii) payments relating to the
Company’s or any of the dAF-Consolidated Group’s maintenance obligations under
any Lease Document, or (iii) capital expenditures or commitments in the
ordinary course consistent with past practice not exceeding US$1,000,000 (one
million US Dollars) in an individual case, capital expenditures or commitments
for additions (aktivierungsfähig)
to Assets and Properties of the Company and the dAF-Consolidated Companies
constituting capital assets in an amount exceeding US$500,000 (five hundred
thousand US Dollars) in the individual case, or US$3,000,000 (three million US
Dollars) in the aggregate;


 


(l)                                     any commencement or termination of any material
line of business, change by the Company or any dAF-Consolidated Company of
their respective purpose as set forth in the respective articles of association
except in respect of entities of which the articles of incorporation or
association (or any comparable instrument under any applicable jurisdiction)
are being amended, as listed in Schedule
1.3 (aa);


 


(m)                               entering into any contract between the Company and/or any
dAF-Consolidated Company on the one side and advisors or consultants on the
other side (other than KPMG, De Brauw and Mc Cann Fitzgerald) with respect to
services provided or to be provided in direct relation to the transactions
contemplated under this Agreement.


 


5

















 


(n)                                 any entering into a contract to do or engage in
any of the foregoing if and to the extent such contract or engagement is to be
executed after the date hereof; or


 


(o)                                 any other material transaction involving the
Company or any dAF-Consolidated Company which is outside the ordinary course of
business.


 


3.                                      REGULATORY MATTERS


 


3.1                                 Licences


 


(a)                                  The Company and each dAF-Consolidated Company
have obtained all material licences, permissions, authorisations and consents
required for carrying on the Business effectively in all material respects in
the places and in the manner in which the Business is now carried on. A
complete list of such licences, permissions, authorisations and consents is set
forth in Schedule 3.1 (a).


 


(b)                                 Except as set forth in Schedule 3.1 (b), the licences,
permissions, authorisations and consents referred to in 3.1 (a) are in full
force and effect in all material respects.


 


(c)                                  Neither the Company nor any dAF-Consolidated
Company is in material default under any of the licences, permissions,
authorisations or consents referred to in 3.1 (a) nor are there any written
communications of relevant third parties which indicate that any of such
licences, permits, authorisations or consents will be revoked or not renewed,
in whole or in part, in the ordinary course of events whether as a result of
the acquisition of the Shares by the Shares-Purchaser or otherwise.


 


3.2                                 Compliance with Laws


 


(a)                                  The Company and each dAF-Consolidated Company
have conducted the Business in accordance with their articles of association,
by-laws and equivalent company statutes (as applicable).


 


(b)                                 Except as set forth in Schedule
3.2 (b), neither
the Company nor any of the dAF-Consolidated Companies is, or has at any time
been in material violation of, or material default with respect to, any statute,
regulation, order, decree or judgment of any court or any Governmental or
Regulatory Authority of The Netherlands or any other relevant jurisdiction. To
the extent that any matter covered by a Guarantee in this Section 3.2 (b) is
also covered under any other Guarantee contained in this Exhibit 5.1 that is
subject to a disclosure threshold, material qualification or other limitations,
then only such other Guarantee shall be applicable with respect to such matter.
For the avoidance of doubt, this Section 3.2 (b) shall not apply to the matters
covered by Sections 10 and 17.


 


6

















 


4.                                      THE COMPANY’S
AND THE DAF-CONSOLIDATED GROUP’S ASSETS


 


4.1                                 Ownership


 


(a)                                  All tangible assets (other than the Aircraft
Assets, as to which Section 5 of this Exhibit 5.1 and not this Section 4.1(a)
shall relate) included in the Audited Financial Statements 2004 or acquired
since January 1, 2005 (but other than assets sold in the ordinary course of
business) are legally or beneficially (wirtschaftlich)
owned by the Company or a respective dAF-Consolidated Company. Other than shown
in Schedule 4.1 (a), these
tangible assets are not the subject of any Security Interest or any assignment,
option, right of pre-emption, royalty, factoring arrangement, leasing or hiring
agreement, hire purchase agreement, conditional sale or credit sale agreement,
agreement for payment on deferred terms or any similar agreement or arrangement
(or any agreement or obligation, including a conditional obligation, to create
or enter into any of the foregoing), except in the ordinary course of business
and except for:


 


(i)                         any hire or lease agreement in the ordinary course of business involving
expenditure of less than US$1,000,000 (one million US Dollars) per annum (where
the aggregate expenditure under all such agreements is less than US$1,000,000
(one million US Dollars) per annum);


 


(ii)                      title retention provisions in respect of goods and materials supplied to
the Company or any of the dAF-Consolidated Companies in the ordinary course of
business;


 


(iii)                   Permitted
Security Interests; and


 


(iv)                  the
Security Interests, if any, reflected in the Audited Financial Statements 2004
and Security Interests arising solely in the ordinary course of business by
operation of law;


 


(b)                                 Schedule 4.1(b) sets forth a complete and correct list of all
real property (except Aircraft Assets) owned by the Company and the
dAF-Consolidated Companies and lists any lease pursuant to which the Company or
any of the dAF-Consolidated Companies leases real property as lessee or lessor.


 


4.2                                 Insurances


 


(a)                                  Schedule 4.2 (a)
contains a true and complete list of all material (i.e. providing insurance
coverage in excess of US$1,000,000 (one million US Dollars)) liability,
property, workers’ compensation, directors’ and officers’ liability and other
insurance policies currently in effect that insure the business, operations or
employees of the Company or any dAF-Consolidated Company or affect or relate to
the ownership, use or operation of any of the Assets and Properties of the
Company or any dAF-Consolidated Company, excluding, for the avoidance of doubt,
any hull or third party liability insurance taken out by any Lessee. Except as
set out in Schedule 4.2 (a)-1, the
insurance coverage provided by any of such policies will not terminate or lapse
by reason of the transactions contemplated by this Agreement. Except as


 


7

















 


set out
in Schedule 4.2 (a)-2, the insurances
maintained by or covering the Company and each of the dAF-Consolidated Company
are in full force and effect, no premiums due thereunder have not been paid and
neither the Company, nor any dAF-Consolidated Company has received any written
notice of cancellation or termination in respect of any such policy or is in
material default thereunder which may give rise to an exclusion of the
insurance coverage.


 


(b)                                 Except as disclosed in Schedule 4.2 (b), no claim is
outstanding by the Company or any of the dAF-Consolidated Companies under any
such policy of insurance (excluding, for the avoidance of doubt, any hull or
third party liability insurance taken out by any Lessee) exceeding an amount of US$1,000,000 (one
million US Dollars) and there are no circumstances likely to give rise to such
a claim.


 


5.                                      AIRCRAFT ASSETS
AND LEASES


 


(a)                                  The information set forth in the Aircraft
Disclosure Schedule attached hereto as Schedule 5 (a)
is true, correct and complete as of the Signing Date.


 


(b)                                 The Company or a dAF-Consolidated Company (or a
trustee for their benefit) is, in each case, the sole legal and beneficial
owner of, and has good and valid title to (i) each Owned Aircraft, and
(ii) the Lessor’s interest under the applicable Lease Documents. Each
Owned Aircraft is free and clear of Security Interests, other than Permitted
Security Interests. Each Lease Document is free and clear of Security
Interests, other than (a) Permitted Security Interests, (b) security (in
particular, the assignment of rights, claims and interests under any Lease
Document) provided pursuant to any Headlease Document or under any Loan
Facility, and (c) any purchase option granted to a Lessee under the applicable
Lease as indicated in the Aircraft Disclosure Schedule.


 


(c)                                  Except for the Owned Aircraft, the Structured
Finance Aircraft, the Leased-in Aircraft and except as disclosed in Schedule 5 (c), neither the Company nor
any of the dAF-Consolidated Companies has any legal or beneficial interest in
any aircraft.


 


(d)                                 Except as disclosed in Schedule 5 (d), (i) no Lessor has
notified or otherwise informed any Lessee in writing of an event of default,
material default or similar material event (as defined in the applicable Lease)
allowing for or, with notice or passage of time, would allow for the exercise
of remedies by the Lessor has occurred and is continuing under any Lease,
(ii) no material payment failure in excess of US$1,000,000 (one million US
Dollars) has occurred and is continuing for more than thirty (30) days from the
due date which, if uncured, would become an event of default (as so defined in
the applicable Lease) under any Lease, and (iii) no failure to maintain
insurance has occurred and is continuing for more than thirty (30) days from
the due date which is, if uncured would become, an event of default (as so
defined in the applicable Lease) under any Lease.


 


(e)                                  Except as disclosed in Schedule
5 (e), (i) no Headlessor has notified or


 


8

















 


otherwise informed the Company
or any dAF-Consolidated Company in writing of an event of default, material
default or similar material event (as defined in the applicable Headlease)
allowing for or, with notice or passage of time, would allow for the exercise
of remedies by the Headlessor has occurred and is continuing under any
Headlease, and (ii) no payment failure in excess of US$1,000,000 (one million
US Dollars) has occurred and is continuing for more than thirty (30) days from
the due date, which, if uncured, would become an event of default (as so
defined in the applicable Headlease).


 


(f)                                    The Lease Documents listed in Schedule 5 (f) pertaining to each
Aircraft Asset constitute the whole agreement between the relevant Lessor and
the relevant Lessee relating to such Aircraft Asset and includes a complete
list of all material (i.e. having a direct or indirect economic impact
exceeding US$500,000 (five hundred thousand US Dollars) in case a value can be
attributed) written amendments, supplements, novations, consents, approvals and
waivers relevant to the Lease Documents related to such Aircraft Asset, and
there are no oral waivers in effect that would materially modify or amend the
terms thereof except where such waivers are made or granted in the ordinary and
usual course of business consistent with past practice.


 


(g)                                 The Headlease Documents listed in Schedule 5 (g) pertaining to each
Leased-in Aircraft and Structured Finance Aircraft constitute all the Headlease
Documents relating to such Aircraft and the Aircraft Assets related thereto and
includes a complete list of all material (i.e. having a direct or indirect
economic impact exceeding US$500,000 (five hundred thousand US Dollars) in case
a value can be attributed) written amendments, supplements, novations,
consents, approvals and waivers relevant to the Headlease Documents related to
such Aircraft and the Aircraft Assets related thereto, and there are no oral
waivers in effect that would materially modify or amend the terms thereof,
except where such waivers are made or granted in the ordinary and usual course
of business consistent with past practice.


 


(h)                                 Except as disclosed in Schedule 5 (e) or Schedule 5 (h) (i) all Headlease
Documents and all Lease Documents are in full force and effect in accordance
with the respective terms thereof in all material respects, and (ii) there have
been no material waivers of any of the Company’s or any dAF-Consolidated
Company’s rights under any Lease Documents or Headlease Documents (including
any material waiver in respect of accrued or future rent or other monies
payable or to become payable under any Lease Document or Headlease Document or
any reduction of the rent or other monies payable under such Lease Document or
Headlease Document) and neither the Company nor any dAF-Consolidated Company
has materially increased or agreed to materially increase any of its
obligations under any Lease Documents or any Headlease Documents.


 


(i)                                     Except as disclosed in Schedule 5 (i) there is no material
alleged breach or similar claim not resolved which have been asserted against
the Company or a dAF-Consolidated Company (or a trustee for the benefit
thereof) arising out of any Lease Document or Headlease Document (other than
claims constituting Permitted Security Interests).


 


9

















 


(j)                                     Except as disclosed in Schedule 5 (j), there are no Security
Interests on any Aircraft Assets other than Permitted Security Interests which
are not permitted pursuant to the terms of the relevant Lease Documents and/or
Headlease Documents.


 


(k)                                  Except as disclosed in Schedule 5 (k), no Aircraft Asset has
been involved in any incident which caused damage in excess of the amount
required to be disclosed to the relevant Lessor under the relevant Lease or
which would materially adversely affect the residual value of such Aircraft
Asset.


 


(l)                                     Except as disclosed in Schedule 5 (l), no compulsory
airworthiness directives are outstanding against any Aircraft Asset that would
require the Company or a dAF-Consolidated Company (or a trustee for their
benefit) to make any material contributions exceeding US$1,000,000 (one million
US Dollars) in the individual case, or exceeding US$2,000,000 (two million US
Dollars) in the aggregate in case more than one Aircraft Asset is involved, to
the cost associated therewith pursuant to the terms of the relevant Lease.


 


(m)                               Except as disclosed in Schedule 5
(m), since January 1, 2005 no options to purchase any
Aircraft Assets, extend or terminate any Lease have been exercised by the
relevant Lessee in accordance with the terms of the relevant Lease Document(s).


 


(n)                                 Except as disclosed in Schedule 5 (n), no event has occurred
or act or thing done or omitted to be done by the Company or a dAF-Consolidated
Company pursuant to which or as a result of which the relevant Lease or
Headlease can be terminated or the obligations of any such party thereunder
would be rendered invalid or unenforceable (subject to limitations on
enforceability imposed by equitable principles limiting the right to obtain or
seek specific performance or by other equitable remedies or by applicable corporate,
bankruptcy or insolvency laws and related decisions affecting creditors’ rights
generally).


 


6.                                      CONTRACTUAL MATTERS


 


(a)                                  The Material Contract Schedule attached hereto
as Schedule 6 (a) contains a true,
correct and complete list of all Material Contracts to which the Company or any
of the dAF-Consolidated Companies is bound.


 


(b)                                 Each Material Contract required to be disclosed
in Schedule 6 (a) is in all material
respects in full force and effect and constitutes a legal, valid and binding
agreement, enforceable in accordance with its terms (subject to limitations on
enforceability imposed by equitable principles limiting the right to obtain or
seek specific performance or by other equitable remedies or by applicable
corporate, bankruptcy or insolvency laws and related decisions affecting
creditors’ rights generally), of each party thereto; and except as disclosed in
Schedule 6 (b), neither the
Company, any dAF-Consolidated Company nor any other party to such Material
Contract is, or has received written notice in accordance with the terms of the
relevant Material Contract


 


10

















 


that it
is, in violation or breach of or default under any such Material Contract or
with notice or lapse of time or both, would be in violation or breach of or
default under any such Material Contract in any material respect. None of the
Material Contracts are voidable or reasonably likely to be rescinded or
terminated.


 


(c)                                  Except for any Intra-Group Agreements neither
the Company nor any dAF-Consolidated Company is party to any loan agreement,
credit agreement, note, bond, debenture or other agreement other than the Loan
Facilities, the SHL-Loans and the US-Notes, under which it is obligated to make
payment with respect to borrowed monies or other financial indebtedness. Except
for any guarantee issued by the Company or any wholly owned dAF-Consolidated
Company (it being understood that debis AirFinance Ireland plc shall be deemed
to be wholly owned for purposes of this Section) as Lessor or which depend on
the performance of the Company or any
dAF- Consolidated Company (collectively the “Lessor
Guarantees”) and except as disclosed in Schedule
6 (c), neither the Company, nor any dAF-Consolidated Company has
given any guarantee or security other than under or in respect of any Loan
Facilities, the SHL-Loans, the US-Notes and the Headleases.


 


 (d)                              Except for the Permitted Security Interests,
the Lessor Guarantees and guarantees or security under or in respect of any
Loan Facilities, the SHL-Loans, the US-Notes and the Headleases or except as
disclosed in Schedule 6 (d),
neither the Company nor any of the dAF-Consolidated Company act as a surety (Buerge) for or has issued any guarantee or provided any
security in favor of any third party or the Sellers to secure the obligations
of any other Person.


 


7.                                      LITIGATION AND INVESTIGATIONS


 


(a)                                  Except as set forth in Schedule 7 (a), and except as plaintiff
in the collection of debts arising in the ordinary course of business, (i) neither
the Company nor any dAF-Consolidated Company is a plaintiff or defendant in or
otherwise a party to any litigation (which term also includes in this
Agreement, arbitration or mediation), administrative, or criminal proceedings
which are in progress or pending and (ii) no such litigation, arbitration,
administrative or criminal proceeding is threatened or pending or anticipated by
or against or concerning the Company and/or any dAF-Consolidated Company. No
conservatory or executory attachment has been made against the Company or any
of the dAF-Consolidated Companies or any of their respective assets.


 


(b)                                 No governmental, regulatory or official
investigation or inquiry (including without limitation any proceedings before
the enterprise chamber of the Amsterdam Court of Appeals (Ondernemingskamer))
concerning the Company and/or any dAF-Consolidated Company is in progress or
pending, or threatened or anticipated.


 


11

















 


8.                                      DIRECTORS AND EMPLOYEES


 


8.1                                 Employees


 


The
total staff costs of the dAF-Consolidated Group (including the Company) for
financial year 2004 are correctly reflected, in all material respects, in the
Audited Financial Statements 2004. All compensation related agreements and
arrangements with the persons listed on Schedule 8.1
have been made available to the Purchaser, except for such agreements where the
consent of such persons was upon the Sellers’ request not given.


 


8.2                                 Compliance


 


The Company and each of the dAF-Consolidated Companies have duly
performed their material obligations vis-à-vis any director, Supervisory
Director, officer or employee arising from the law or under the respective employment
contract.


 


8.3                                 Disputes and Works Council


 


Except as set forth in Schedule 8.3,
in the preceding three (3) financial years, neither the Company nor any of the
dAF-Consolidated Companies have experienced any collective labour dispute,
strike or other labor unrest. Neither the Company nor any of the dAF
Consolidated Companies is in breach of any obligation to establish a Works
Council (Ondernemingsraad).


 


8.4                                 Benefit Plans


 


Schedule 8.4 (a) contains a true and complete list of all the
Benefit Plans. Except as set forth in Schedule 8.4 (a), with respect to the
period until the Effective Date all cash payments required to be made on or in
respect of the Benefit Plans had been paid or adequately accrued for in the
Audited Financial Statements 2004. Except as set forth in Schedule
8.4 (b), neither the Company nor any of the dAF-Consolidated
Companies is party to or otherwise involved in any legal proceeding with any
former employees with respect to the Benefit Plans.


 


9.                                      SHL SENIOR LOANS
AND SUBORDINATED LOANS


 


9.1                                 Title


 


Each of the SHL-Lenders has
unrestricted and unencumbered legal and beneficial title to and in its respective
entire participation in the respective SHL-Loans as more closely set forth in
Exhibit 1.3.1, 1.3.2-1 and 1.3.2-2 to this Agreement. Subject to due execution
of the Loans Transfer Documents by the Senior Lenders, Subordinated Lenders and
Loans-Purchaser, the transfer to the Loans-Purchaser of the SHL-Loans in the
manner provided in Section 2.3 of this Agreement will transfer to the
Loans-Purchaser good and valid title to the SHL-Loans free and clear of all
Security Interests.


 


12

















 


9.2                                 Amounts


 


The amounts owed by the
Company to the SHL-Lenders under the SHL-Loans as of January 1, 2005 are
correctly set forth in Exhibits 1.3.1 and 1.3.2-2 to this Agreement, and the
SHL-Lenders have (subject to limitations on enforceability imposed by equitable
principles limiting the right to obtain specific performance or other equitable
remedies (including principles limiting the enforceability of capital replacing
shareholder loans) or by applicable corporate, bankruptcy or insolvency laws
and related decisions affecting creditors’ or shareholder creditors’ rights
generally) legally valid claims against the Company for payment of such amounts
under the SHL-Loan Agreements. The amounts of draw-downs under the Revolving Facility
and of unpaid interest accrued under the SHL-Loans through to the Closing Date
as notified to the Purchasers in accordance with Section 3.1 of this Agreement
will be true and correct.


 


10.                               FINANCIAL
STATEMENTS; BOOKS AND RECORDS


 


10.1                           Financial Statements


 


Subject to the exceptions set forth in the
following sentence, the consolidated balance sheet as set out in Schedule 10.1, presents fairly in all
material respects, the consolidated financial position of the Company as at
December 31, 2004 in conformity with GAAP. However, the Sellers are not making
or giving pursuant to this Section 10.1, and the Purchasers shall not be
entitled to rely on, any representation, warranty or guarantee pursuant to this
Section 10.1 with respect to the following items recorded in the balance sheet
as at December 31, 2004.


 


1.               Assets


 


a.                                       Flight equipment on operating leases, net


 


b.                                      Net investment in financial fixed assets


 


c.                                       Goodwill


 


d.                                      Provisions relating to Trade receivables and
Notes receivables


 


e.                                       Other tangible fixed assets, net


 


f.                                         Other assets


 


g.                                      Deferred tax asset


 


h.                                      As a result of above - Total Assets


 


2.               Liabilities and Shareholders’ Equity


 


a.               Share capital, Accumulated deficit and
Accumulated other comprehensive loss.


 


13

















 


b.              From accrued expenses and other liabilities


 


1.               Maintenance reserves


2.               The following accruals included in accrued
expenses Skywest, Creditcard accrual, Expected cost delivery to windjet,
Engine, Engine, Accrued Tax Fees, and Current Corporation Tax Provision Account


3.               LILO accrual


4.               LILO deferred expense


5.               Accrued restructuring provision


 


c.               Deferred taxes


 


d.              Deferred revenue


 


e.               As a result of above - Shareholders’ Equity,
Shareholders’ Fund, Total Liabilities and therefore, Total Liabilities and
Shareholders’ Funds


 


10.2                           Books
and Records


 


Schedule
10.2 contains copies of the resolutions adopted by the
management board of the Company in ordinary meetings of the management board of
the Company in the financial years 2003 and 2004 excluding any (extracts of)
written consents and/or resolutions in lieu of a meeting of the management
board of the Company.


 


10.3                           No
Undisclosed Liabilities


 


Except as reflected or reserved against in
the consolidated balance sheet included in the Audited Financial Statements
2004 or in the notes thereto as attached in Schedule
10.3-1, or as disclosed in Schedule
10.3-2, there are no absolute, accrued, contingent or fixed liabilities
(whether due or to become due) of the Company or any dAF-Consolidated Company as
of December 31, 2004, other than liabilities (a) incurred in the ordinary
course of business, or (b) which, individually or in the aggregate, do not
exceed US$10,000,000 (in words: ten million US Dollars), provided that for
purposes of this Section 10.3 a contingent liability shall exist only if and to
the extent when taking into account the actual knowledge (positive
Kenntnis) of Klaus Heinemann, Heinrich Loechteken, Cole Reese and
Huib van Doorn as of the Signing Date it was reasonably likely that such
liability would become absolute, accrued or fixed after December 31, 2004. Notwithstanding
the foregoing, the Sellers are not making or giving pursuant to this Section
10.3, and the Purchasers shall not be entitled to rely on, any representation,
warranty or guarantee pursuant to this Section 10.3 with respect to the
following items recorded in the consolidated balance sheet as at December 31,
2004:


 


Liabilities


 


a.               From accrued expenses and other liabilities


 


14

















 


1.               Maintenance reserves


2.               The following accruals included in accrued
expenses Skywest, Creditcard accrual, Expected cost delivery to windjet,
Engine, Engine, Accrued Tax Fees, and Current Corporation Tax Provision Account


3                  LILO accrual


4                  LILO deferred expense


5                  Accrued restructuring provision


 


b.              Deferred taxes


 


c.               Deferred revenue


 


11.                               INVESTMENT
ASSETS


 


Except as disclosed in Schedule 11
or specifically referenced in the Audited Financial Statements 2004, the
Company and the dAF-Consolidated Companies own no Investment Assets. Except as
disclosed in Schedule 11, all such
Investment Assets are owned by the Company or a dAF-Consolidated Company free
and clear of all Security Interests, except for Permitted Security Interests
and except for security interests under the general terms and conditions of the
respective financial institutions acting as a depositary.


 


12.                               NO CONFLICTS


 


Except
as set forth in Schedule 12
and except with respect to any of the Material Contracts listed on the Material
Contract Schedule, the execution and delivery of this Agreement by the Sellers,
the performance by the Sellers of their obligations under this Agreement and
the consummation of the transactions contemplated hereby will not: (a) conflict
with or result in a violation or breach of, (b) constitute (with or without
notice or lapse of time or both) a default under, (c) require the Company and/or
any of the dAF-Consolidated Companies to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of, (d) result in or give to any Person any right of termination,
cancellation, acceleration or modification in or with respect to, (e) result in
or give to any Person any additional rights or entitlement to increased,
additional, accelerated or guaranteed payments under, or (f) result in the
creation or imposition of any lien upon the Company and/or any of the
dAF-Consolidated Companies or any of their respective Assets and Properties
under, any contract or licence to which the Company and/or any of the
dAF-Consolidated Companies is a party or by which any of their respective
Assets and Properties is bound.


 


13.                               AFFILIATE
TRANSACTIONS


 


Neither
the Company nor any of the dAF-Consolidated Companies entered into any agreements
with principal obligations (Hauptleistungspflichten)
still to be performed by any Seller, or any officer, director or, Affiliate
(other than the Company or a dAF-Consolidated Company) of any Seller the
economic terms of which are not at arm’s-length.


 


15

















 


14.                               [Reserved]


 


15.                               [Reserved]


 


16.                               BROKERS


 


All negotiations relative to
this Agreement and the transactions contemplated hereby have been carried out
by the Sellers directly with the Purchasers without the intervention of any
Person on behalf of the Sellers in such manner as to give rise to any valid
claim by any Person against the Purchasers, the Company or any dAF-Consolidated
Company for a finder’s fee, brokerage commission or similar payment. Any
advisors retained for the exclusive benefit of the Sellers in connection with
the transactions under this Agreement have not been paid by the Company or any
dAF-Consolidated Company. For the avoidance of doubt, the Parties agree that
KPMG, De Brauw and Mc Cann Fitzgerald are permitted expenditures
of the Company and that expenditures for Rothschild and Baker & McKenzie
LLP incurred for services in connection with this transaction are borne by the
Sellers.


 


17.                               TAXES


 


17.1                           Tax Liabilities


 


Except as set forth in Schedule 17.1,
all material, actual and disputed liabilities for Taxes of the Company and each
dAF-Consolidated Company measured by reference to income, profits, gains
turnover or sales earned, accrued, received, realised or invoiced on or before December
31, 2004 are fully provided for or disclosed in the Audited Financial
Statements 2004. In this context, it is expressly being clarified that the
Sellers do not give any Guarantee, and do not accept any liability, with
respect to the sufficiency of deferred Tax liabilities as recorded on the
Audited Financial Statements 2004.


 


17.2                           No Dispute


 


Neither the Company nor a dAF-Consolidated Company is involved in any
current dispute with any Tax authority or is or has in the last three years
been the subject of any investigation, audit or non-routine visit by any tax
authority, except as disclosed in Schedule
17.2.


 


17.3                           Employee Taxes and Deductions


 


Except as set out in Schedule 17.3
all amounts payable to any tax or social security authority in respect of any
employee (including but not limited to any Tax deductible from any amounts paid
to an employee, and any national insurance, social fund or similar
contributions required to be made in respect of employees) due and payable by
the Company or any dAF-Consolidated Company up to the date hereof have been
duly paid and the Company and each dAF-Consolidated Company have made all such
deductions and retentions as should have been made under applicable laws or
regulations.


 


16

















 


17.4                           Permanent Establishments


 


Except as set out in Schedule 17.4, for Tax purposes, both
the Company and debis AirFinance Ireland plc are and have been resident only in
the jurisdiction in which they are incorporated and do not have nor had a
permanent establishment or permanent representative or other taxable presence
in any jurisdiction other than that in which they are resident for Tax purposes.
Neither the Company nor a dAF-Consolidated Company constitutes or has
constituted a permanent establishment or is or has been a permanent
representative of another Person.


 


17.5                           Tainted Shares


 


Neither the Company nor a dAF-Consolidated
Company has tainted (share) capital (besmet fusie
aandelenkapitaal en/of agio) within the meaning of Article 3a of the
Dutch Dividend Tax Act of 1965.


 


17.6                           No Guarantees for Tax losses
carried-forward


 


The Sellers do not grant any Guarantees, and do not accept any
liability, for the existence, amount or availability of any Tax losses
carried-forward of the Company or any dAF-Consolidated Company.


 


17














 


Roll
of deeds G 228/2005


 


NOTARIAL DEED


 


AMENDMENT AGREEMENT


 


Negotiated on June 29, 2005.


Before me, the undersigned
Notary Public


 


Dr. Peter Gamon


 


at Frankfurt
am Main appeared today in the offices of Baker & McKenzie, Bethmannstr.
50-54, Frankfurt/Main, whereto I had betook myself upon request:


 


1.          Dr.
Henrik Bauwens,

born July 12, 1971

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


according
to his declaration acting not in his own name, but in the name and on behalf of


 


DaimlerChrysler
Financial Services AG (formerly: DaimlerChrysler Services AG), Eichhornstraße 3, DE 10875 Berlin, Germany, a German stock corporation
registered with the Commercial Register at the Local Court of Berlin-Charlottenburg
under No. HRB 33551,


 


-
hereinafter referred to as “DC Services” -


 


pursuant
to a certified power of attorney dated March 22, 2005 and a certified sub-power
of attorney dated June 23, 2005;


 


2.          Sandra
Schöniger,

born April 15, 1976

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying herself by her German identity card,


 


according
to her declaration acting not in her own name, but in the name and on behalf of


 

















 


DaimlerChrysler
Aerospace Aktiengesellschaft,
Willy-Messerschmitt-Straße, DE 85521 Ottobrunn, Germany, a German stock
corporation registered with the Commercial Register at the Local Court of
München under No. HRB 98454,


 


-
hereinafter referred to as “DC Aerospace” -


 


pursuant
to a certified power of attorney dated March 24, 2005 and a certified sub-power
of attorney dated June 23, 2005;


 


3.          Jens
Rikus,

born August 23, 1971

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


according
to his declaration acting not in his own name, but in the name and on behalf of


 


DaimlerChrysler
AG, Epplestraße 225, DE 70567 Stuttgart, Germany, a
German stock corporation registered with the Commercial Register at the Local
Court of Stuttgart under No. HRB 19360,


 


-
hereinafter referred to as “DC AG” -


 


pursuant
to a certified power of attorney dated March 24, 2005 and a sub-power of
attorney dated June 28, 2005;


 


4.          Hendrik
Sehy,

born July 17, 1977

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


according
to his declaration acting not in his own name, but in the name and on behalf of


 


Bayerische
Hypo- und Vereinsbank Aktiengesellschaft, Arabellastraße 14, DE 81925 Munich, Germany, a German stock
corporation registered with the Commercial Register at the Local Court of
München under No. HRB 42148,


 


-
hereinafter referred to as “HVB” -


 


pursuant
to a certified power of attorney dated March 29, 2005 and a sub-power of
attorney dated June 27, 2005;


 


5.          Frank
Degenhardt,

born November 23, 1969


 


2

















 


business
address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


according
to his declaration acting not in his own name, but in the name and on behalf of


 


HVB
Banque Luxembourg SA, 4, rue Alphonse
Weicker, LU 2721 Luxembourg, Luxembourg, a Luxembourg stock corporation
registered with the Commercial Register of Luxembourg under No. B 9989,


 


-
hereinafter referred to as “HVB Luxembourg”
-


 


pursuant
to a certified power of attorney dated March 24, 2005 and an undated sub-power
of attorney;


 


6.          Markus
Krüger,

born October 8, 1972

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


according
to his declaration acting not in his own name, but in the name and on behalf of


 


Bayerische
Landesbank, Brienner Str.
18, DE 80333 Munich, Germany, a German incorporated public-law institution
registered with the Commercial Register at the Local Court of München under No.
HRA 76030,


 


-
hereinafter referred to as “BLB” -


 


pursuant
to a certified power of attorney dated March 23, 2005 and a certified sub-power
of attorney dated June 24, 2005;


 


7.          Martin
Kaiser,

born May 3, 1973

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


according
to his declaration acting not in his own name, but in the name and on behalf of


 


BLB Beteiligungsgesellschaft
Beta mbH, Brienner Str. 18, DE 80333
Munich, Germany, a German limited liability company registered with the
Commercial Register at the Local Court of München under No. HRB 91796,


 


-
hereinafter referred to as “BLB-Beteiligung”
-


 


3

















 


pursuant
to a certified power of attorney dated March 23, 2005 and a certified sub-power
of attorney dated June 24, 2005;


 


8.          Dr. Jan
Gernoth,

born January 10, 1972

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


according
to his declaration acting not in his own name, but in the name and on behalf of


 


Dresdner
Bank Aktiengesellschaft, Platz der
Einheit 2, DE 60301 Frankfurt am Main, Germany, a German stock corporation
registered with the Commercial Register at the Local Court of Frankfurt am Main
under No. HRB 14000,


 


-
hereinafter referred to as “Dresdner Bank”
-


 


pursuant
to a certified power of attorney dated March 30, 2005 and a certified sub-power
of attorney dated June 24, 2005;


 


9.          Anja
Drees,

born September 4, 1975

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying herself by her German identity card,


 


according
to her declaration acting not in her own name, but in the name and on behalf of


 


DZ BANK
AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main, Platz der Republik, DE 60265 Frankfurt am Main, Germany, a German
stock corporation registered with the Commercial Register at the Local Court of
Frankfurt am Main under No. HRB 45651,


 


-
hereinafter referred to as “DZ” -


 


pursuant
to a certified power of attorney dated March 30, 2005 and a certified sub-power
of attorney dated June 24, 2005;


 


10.        Dr.
Michael Reichle,

born December 23, 1973

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


4

















 


according
to his declaration acting not in his own name, but in the name and on behalf of


 


DZ
Beteiligungsgesellschaft mbH Nr. 6, Platz der
Republik, DE 60325 Frankfurt am Main, Germany, a German limited liability
company registered with the Commercial Register at the Local Court of Frankfurt
am Main under No. HRB 52008,


 


-
hereinafter referred to as “DZ  Beteiligung” -


 


pursuant
to a certified power of attorney dated April 1, 2005 and an undated sub-power
of attorney;


 


11.        Dr.
Kilian Helmreich,

born January 11, 1974

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


12.        Dr. Sven
Timmerbeil,

born December 7, 1974

business address: Bethmannstr. 50-54, 60311 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


according
to their declarations acting not in their own names, but jointly in the name
and on behalf of


 


KfW, Palmengartenstr. 5-9, DE 60325 Frankfurt am Main, Germany, a
German incorporated public-law institution,


 


-
hereinafter referred to as “KfW” -


 


pursuant
to a certified power of attorney dated March 23, 2005 and a certified sub-power
of attorney dated June 25, 2005;


 


-
the parties referred to above collectively the “Sellers”

and each of them individually a “Seller” -


 


13.        Sarah
Curtis Casey,

born April 25, 1971,


 


5

















 


business
address: An der Welle 4, 60422 Frankfurt am Main, Germany

identifying herself by her German driver’s license with photo,


 


according
to her declarations acting not in her own name, but – excluding any personal
liability of the appeared person against the other parties hereto - in the name
and on behalf of


 


FERN S.à
r.l., c/o Cerberus Capital Management,
L.P., 299 Park Avenue, New York, New York 10171, U.S.A., a Luxembourg limited
liability company with registered head office at 46A, Avenue J.F. Kennedy,
LU 1855 Luxembourg, registered with the Commercial Register of Luxembourg
under No. B 104664;


 


pursuant
to a certified power of attorney dated June 27, 2005;


 


-
hereinafter referred to as the “Initial Purchaser”
-


 


and


 


14.        Jan Wilms,

born February 15, 1975

business address: An der Welle 4, 60422 Frankfurt am Main, Germany

identifying himself by his German identity card,


 


according
to his declarations acting not in his own name, but – excluding any personal
liability of the appeared person against the other parties hereto - in the name
and on behalf of


 


FERN GP S.à r.l., a company under
the laws of Luxembourg, having its registered office at 46A, Avenue J.F.
Kennedy, LU 1855 Luxembourg, Luxembourg,


 


acting
in its capacity as general partner of
(for the benefit and risk of)


 


AerCap
Holdings C.V., a limited
partnership (“commanditaire vennootschap”)
under the laws of the Netherlands, having its registered seat in Schiphol, the
Netherlands and its address at Evert van de Beekstraat 312, 1118 CX Schiphol,
the Netherlands,


 


pursuant
to a power of attorney dated June 27, 2005;


 


-
hereinafter referred to as the “New Purchaser”
-


 


-
the Sellers, the Initial Purchaser and the New Purchaser collectively the “Parties”

and each of them individually a “Party” -


 


6

















 


The aforementioned powers and sub-powers of attorney were submitted in
copies to the Notary. The Notary advised the appeared that powers of attorney
must be submitted in the originals in order to be sure that they are still
valid. The appeared asked the Notary to notarise despite this fact. They
declared that the originals of the powers of attorney will be submitted to the
Notary and asked the Notary to attach them to this deed as certified copies.


 


The notary asked the appeared persons whether he or one of his
colleagues had been previously involved in terms of Section 3 (1) No.
7 of the German Notarisation Act (“Beurkundungsgesetz”),
which they denied.


 


The persons appearing requested this Deed to be recorded in the English
language. The acting Notary Public who is in sufficient command of the English
language ascertained that the persons appearing are also in command of the
English language. After having been instructed by the acting Notary, the
persons appearing waived the right to obtain the assistance of a sworn
interpreter and to obtain a certified translation of this Deed.


 


The persons appearing, acting as
indicated, declared with request for notarial recording the following:


 


AMENDMENT AGREEMENT


 


RECITALS


 


WHEREAS, the Sellers and the Initial Purchaser entered into a Sale and
Purchase Agreement dated April 4, 2005 (Deed Nos. A.Prot. 2005/100 and 101 of
the notary public Stephan Cueni, Basel, Switzerland) (the “SPA”);


 


WHEREAS, the Sellers, the Initial Purchaser and Cerberus Capital
Management, L.P., a limited partnership organized under the laws of Delaware,
with head office at 299 Park Avenue, New York 10171 entered into an Indemnity
Document dated June 3, 2005 (Deed No. A.Prot. 2005/179 of the notary public
Stephan Cueni, Basel, Switzerland) (the “Indemnity
Document”);


 


WHEREAS, the Initial Purchaser intends to assign all rights under the
SPA to the New Purchaser in accordance with Section 14.5 of the SPA and the New
Purchaser intends to accept this assignment. It is being the common
understanding of the Parties that until June


 


7

















 


30, 2005 the New Purchaser will be a partnership wholly owned by funds
or accounts managed by Cerberus Capital Management, L.P.;


 


WHEREAS, the Parties intend to agree on certain amendments and
arrangements.


 


Now, therefore the Parties agree as follows:


 


The Parties make reference to the notarised reference deeds dated June
28/29, 2005 [roll of deeds No. G 223/224/225/226/227/2005 of the acting
Notary], which were available in the originals during this notarisation. The
content of these reference deeds are the SPA, the Indemnity Document and the
Exhibits and Schedules thereto. The Parties are fully aware of the contents of
the aforementioned reference deeds. They waive the right to have them read
aloud and to have them attached to this Deed.


 


1.             Assignment by the Initial
Purchaser to the New Purchaser


 


1.1           The Initial Purchaser hereby assigns any and
all of its rights under the SPA (as amended by this Agreement) to the New
Purchaser, effective as of the date hereof. The New Purchaser hereby accepts
such assignment, effective as of the date hereof, and agrees, vis-à-vis the
Initial Purchaser and the Sellers, to be bound by all of the terms, conditions
and provisions contained in the SPA (as amended by this Agreement) and the
Indemnity Document and any reference in the SPA (as amended by this Agreement)
to the Purchaser shall be construed to be a reference to the Initial Purchaser
and the New Purchaser. For the avoidance of doubt, the New Purchaser shall in
particular be bound by the Initial Purchaser’s obligations and agreements set
forth in the SPA. Any breach of an obligation to mitigate damages or to recover
damages from a third party as provided under the SPA by the Initial Purchaser
and/or the New Purchaser shall limit or exclude, as the case may be, any claims
of the New Purchaser against any of the Sellers under the SPA.


 


1.2           The Parties are in agreement, that the assignment
of rights to the New Purchaser hereunder shall not relieve the Initial
Purchaser from any liability and/or any obligation under the SPA (as amended by
this Agreement) and/or the Indemnity Document.


 


8

















 


2.             Amendments to the SPA; Waiver
of Certain Closing Conditions; Closing Date


 


2.1           The first sentence of Section 3.1 of the SPA
shall be amended as follows (the amendment is underlined):


 


“The
aggregate purchase price for the Shares and the SHL-Loans shall be a fixed
amount of US$ 1,344,000,000 (in words: one billion three hundred
forty-four million US Dollars) (i) plus any
amounts drawn (and outstanding at the Closing) under the
US$ 100,000,000.00 (in words: one hundred million US Dollars) revolving
facility (“Revolving Facility”)
that is part of the SHL Senior Secured Refinancing Facility except to the
extent that such amounts have been drawn in violation of the Shareholders’
obligations under Section 8.7 below, (ii) plus any
accrued and unpaid interest on the SHL-Loans (including accrued and unpaid interest
under the Revolving Facility) until the Closing, and (iii) less
the aggregate amount of all payments of principal on, or with respect to, the
SHL-Loans subsequent to December 31, 2004 (collectively, the “Purchase Price”).”


 


2.2           The provisions of Section 4.8.1 (i) of the SPA
shall be amended as follows (the amendment is underlined):


 


“(i)          the
Closing has not occurred until July 15, 2005, 24.00 hrs. CET, or”


 


2.3           The
Initial Purchaser and the New Purchaser hereby waive the conditions to Closing
set forth in Section 4.2.2 (c) of the SPA.


 


2.4           The provision of Section 4.1.3 of the SPA shall
be replaced by the following provision:


 


“4.1.3      The “Closing Date” shall be June 30, 2005.”


 


2.5           There shall be no other amendments to the SPA.


 


2.6           Only
after April 4, 2005 the Parties and the management of debis AirFinance B.V.,
Amsterdam, The Netherlands (the “Company”)
became aware of the requirement to make a filing with the Irish Financial
Services Regulatory Authority with respect to the change-of-control of the
Company, as well as the obligation to make filings with authorities relating to
a certain tax certificate pursuant to Section 445 (2) of the Irish Taxes
Consolidation Act, 1997 and a certain license to operate in the Irish Shannon
Customs Free Airport Zone under Section 2 (1) of the Irish Customs Free Airport
(Amendment) Act, 1958 (all such filings collectively, the “Irish
Regulatory Filings”). The Initial Purchaser and the New Purchaser
hereby waive any and all claims of whatsoever nature against any of the Sellers
resulting from the fact that the


 


9

















 


clearance by the Irish Financial Services
Regulatory Authority had not been obtained and the Irish Regulatory Filings had
not been made prior to April 4, 2005 (the “Potential Non-Compliance”).
The Initial Purchaser and the New Purchaser hereby confirm that the Irish
Regulatory Filings and the Potential Non-Compliance do not affect the
satisfaction, if any, of the conditions to be satisfied for the consummation of
the transactions contemplated under the SPA.


 


3.             Miscellaneous


 


3.1           All notarial fees in connection with the
execution and consummation of this document or the transactions contemplated
herein shall be equally borne by the Sellers on the one hand and the New
Purchaser on the other hand. Unless expressly stated otherwise in this
Agreement, all costs, including fees, expenses and charges, each incurred in
connection with the preparation, negotiation, execution and consummation of
this Agreement and the transactions contemplated herein, including without
limitation, the fees and expenses of professional advisors, shall be borne by
the Party commissioning such costs.


 


3.2           Each Party shall treat this Agreement and the
terms and provisions hereof as confidential and further agrees that it shall
not, without the prior written consent of the other Parties hereto, disclose
the contents of this Agreement to any person except as may be required by
applicable law (including requests from banking supervisory authorities) or
government regulation or stock exchange regulation. In connection with any such
permitted disclosure the Party making such permitted disclosure shall use its
best efforts to obtain confidential treatment of this Agreement. The Parties
further agree to consult and cooperate with each other in making and supporting
any such request for confidential treatment.


 


3.3           This Agreement shall comprise the entire
agreement between the Parties concerning the subject matter hereof and shall
supersede and replace all prior oral and written declarations of intention made
by the Parties in respect thereof.


 


3.4           Any amendments to this Agreement (including
amendments to this clause) shall be valid only if made in writing, unless a
stricter form is required by mandatory law.


 


3.5           The headings in this Agreement are inserted
for convenience only and shall not affect the interpretation of this Agreement.
All words used in this Agreement will be


 


10

















 


construed
to be of such gender or number as the circumstances require. The word
“including” shall not limit the preceding words or terms. If provisions in this
Agreement include English terms after which either in the same provision or
elsewhere in this Agreement German terms have been inserted in brackets and/or
italics, the respective German terms alone and not the English terms shall be
authoritative for the interpretation of the respective provisions.


 


3.6           This Agreement shall be governed by, and
construed in accordance with, the laws of the Federal Republic of Germany
excluding the rules of conflicts of laws and the UN Convention on Contracts for
the International Sale of Goods.


 


3.7           Any and all disputes arising out of or in
connection with this Agreement, including disputes on its validity, shall be
finally settled under the Rules of Arbitration of the International Chamber of
Commerce by three arbitrators appointed in accordance with the said Rules.


 


In
deviation from the Rules of Arbitration of the International Chamber of
Commerce, the chairman of the Arbitral Tribunal shall only be appointed by the
International Court of Arbitration of the International Chamber of Commerce if
the two arbitrators nominated by the Parties fail to nominate the chairman
within thirty (30) days after their nomination. When making their nomination,
the arbitrators or the International Court of Arbitration shall take into
account concurring proposals by the Parties.


 


The
place of the arbitration proceedings is Frankfurt am Main, Germany. The
language of the arbitration proceedings is English. Competent Court of Appeals
within the meaning of Section 1062 of the German Code on Civil Procedures (ZPO) shall be the Court of Appeals (Oberlandesgericht) in Frankfurt am Main,
Germany.


 


3.8           Should any provision of this Agreement be or
become invalid or unenforceable as a whole or in part, the validity,
effectiveness and enforceability of the other provisions of this Agreement
shall not be affected thereby. In such case, the Parties agree to recognize and
replace any such invalid or unenforceable provision by such valid and
enforceable provision as comes closest to the economic intent and purpose of
such invalid, or unenforceable provision as regards subject-matter, amount,
time, place and extent. The aforesaid shall apply mutatis mutandis to any inadvertent incompleteness of this
Agreement.


 


The aforementioned deed was read to the appeared
persons in the presence of the notary, approved by them and signed by them and
the notary in their own hands as follows:


 


11