NOTICE OF AUCTION SALE – June 27th 2019
AW109SP GRAND NEW
NOTICE IS HEREBY GIVEN that on June 27th 2019 at 10:00 a.m. prevailing Eastern Time (the “Date of Sale”) in the offices of Pillsbury Winthrop Shaw Pittman LLP, 31 W. 52nd Street, New York, New York 10019 -6109, ECN Aviation Inc. (f/k/a Element Aviation Inc.) (as assignee of Element Financial Corporation), as lender (the “Secured Party”), pursuant to Section 9-610 of the Revised Uniform Commercial Code as enacted in the State of New York (the “UCC”) and under the following agreements:(i) the Aircraft Loan Agreement, dated July 2, 2014 (the “Loan Agreement”) between Aircraft Acquisition Corp., as borrower (the “Borrower” ), and the Secured Party, as lender, in relation to the financing of one 2011 Agusta SPA model AW109SP Grand New Helicopter bearing manufacturer’s serial number 22234 and United States registration mark N412FX (formerly N109GN); and (ii) the Aircraft Mortgage and Security Agreement, dated as of July 2, 2014 (the “Mortgage”, and together with the Loan Agreement and all related loan and security documents, the “Loan Documents”) between the Borrower and the Secured Party, will hold a public auction to offer for sale all of Borrower’s estate, right, title and interest in and to the following assets and properties pledged by the Borrower to the Secured Party under the Loan Documents (except as expressly set forth below) including all of Borrower’s right, title and interest in and to the following:
One (1) 2011 Agusta SPA model AW109SP Grand New Helicopter bearing manufacturer’s serial number 22234 and United States registration mark N412FX (formerly N109GN) (the “Airframe”) together with its two (2) Pratt & Whitney Canada model PW207C engines bearing manufacturer's serial numbers PCE-BH0547 and PCE-BH0534 (the “Engines”), and any and all related equipment, logs, records, and other materials in the actual possession of the Secured Party in respect of the Airframe and the Engines (together with the Airframe and the Engines, the “Aircraft”);
BUT EXCLUDINGAny and all contract rights of the Secured Party under the Loan Documents to seek payment of (i) all principal, interest and other amounts; (ii) any costs and expenses reasonably incurred by the Secured Party; and (iii) all rent and/or lease amounts paid or payable (the “Excluded Assets”). The Excluded Assets include, without limitation, those claims against Robert Francis Xavier Sillerman in the chapter 11 bankruptcy proceeding, In re Robert Francis Xavier Sillerman, Case No. 17-13633 (MKV), in the United States Bankruptcy Court for the Southern District of New York.PRODUCTION YEAR 2011TTSN : 1,023 hoursCONFIGURATION : VIPSERIAL NUMBER : 22234REGISTRATION N-412FXAIRCRAFT LOCATION : Newark, NJ, USAAGENT : BLUEBERRY AVIATION
INSPECTION OF THE AIRCRAFT SHOULD BE ARRANGED BY BLUEBERRY AVIATION PIOR TO SALE DATE.
The Secured Party’s liens against the Aircraft are reflected in financing statements filed under the Uniform Commercial Code, International Interests filed with the International Registry, and an aircraft mortgage and other documents filed with the Federal Aviation Administration; the details of such filings can be found at the website established by the Secured Party’s broker Blueberry Aviation SAM (“Blueberry Aviation”), made available upon request to Blueberry Aviation at the contact information below.The terms and conditions of the public sale are as follows:1. The Aircraft shall be sold as a whole lot on an “AS IS - WHERE IS” basis with all faults, and without recourse to the Secured Party, its agents or representatives, and the Secured Party, its agents and representatives make no representations or warranties, express or implied, as to the value, condition, merchantability or fitness for use or particular purpose of the Aircraft or any other representation or warranty with respect to the Aircraft whatsoever. The Secured Party does not claim title to the Aircraft being sold hereunder and disclaims any warranty of title, possession, quiet enjoyment, and the like in this sale.2. The sale shall be a public auction to the highest qualified bidder. The Aircraft shall be sold for cash at such price or prices and on such other commercially reasonable terms as the Secured Party may determine. The minimum bidding increments will be US$50,000. Higher bids will continue to be entertained until the Secured Party has determined that it has received the highest or best bid. The Secured Party shall determine which bid constitutes the highest or best bid (the “Successful Bid”) by the bidder making the Successful Bid (the “Successful Bidder”). The Secured Party will also determine which bid constitutes the second highest bid or best bid (the “Back-Up Bid”) by the bidder making the Back-Up Bid (the “Back-Up Bidder”). If the Successful Bidder fails to consummate the sale of the Aircraft, the BackUp Bidder will be deemed to have the new Successful Bid.
The Secured Party reserves the right to(a) credit bid all or any part of the total amount of its outstanding debt balance under the Loan Agreement insatisfaction (or partial satisfaction) of the purchase price; (b) reject all bids and terminate the sale; (c) adjourn the sale to such other time or times as the Secured Party may deem proper, only by announcement on the date and at the place of sale, and any subsequent adjournment thereof, without further publication; and (d) impose any other commercially reasonable conditions upon the sale of an Aircraft as the Secured Party may deem proper.3. In order for a prospective bidder (other than the Secured Party) to be eligible to bid at the public auction, such prospective bidder must register with the Secured Party and deposit with the Secured Party the sum of US$200,000 by certified or bank check, or by funds transfer of immediately available funds (which sum shall be refunded by the Secured Party in the event that such bidder is not the Successful Bidder or the Back-Up Bidder), no later than five (5) business days prior to the start of the auction. Eligible bidders may, at the discretion of the Secured Party, participate at the public auction by phone. Any purchaser at the public sale will be required to provide certain representations, warranties, and covenants concerning past and future compliance with the laws, rules and regulations for the United States and any other applicable jurisdiction pertaining to trade embargoes, export controls and transactions with designated persons and the foreign corrupt practices statutes of the United States, all to the satisfaction of the Secured Party, in its sole discretion. Any purchaser will also be required to provide all documentation and information in respect of “Know Your Customer” requirements of the Secured Party.4. Within one hour of the conclusion of the public sale, the Successful Bidder will be required to deposit twenty percent (20%) of the purchase price (less the initial deposit of US$200,000 required to establish eligibility) with the Secured Party and to execute a confirmation of sale satisfactory to the Secured Party; provided, however, that if the Successful Bidder is the Secured Party, then payment for the Aircraft may be made by applying against the purchase price the amounts due to the Secured Party under the Loan Agreement by Borrower. Any bidder other than the Secured Party must pay the deposit in cash, by certified or bank check, or by funds transfer of immediately available funds. The balance of the purchase price must be paid by bank or certified check, or by funds transfer of immediately available funds, upon the execution and delivery of the closing documents. The closing of sale to the Successful Bidder shall take place no later than fifteen (15) business days after the Date of Sale. If the Back-Up Bidder is deemed to have the new Successful Bid, the closing of sale to the Back-Up Bidder shall occur no INSPECTION OF THE AIRCRAFT SHOULD BE ARRANGED BY BLUEBERRY AVIATION PIOR TO SALE DATE.later than fifteen (15) business days of notice that the Back-Up Bidder has the new Successful Bid. Unless the Back-Up Bidder is deemed to have the new Successful Bid, the Back-Up Bidder’s deposit shall be returned and the Back-Up Bidder shall be released of its obligations in respect of its Back-Up Bid by the earlier of (i) two (2) business days of the closing of sale to the Successful Bidder and (ii) sixteen (16) business days after the Date of Sale. All other bidder deposits shall be returned within two (2) business days of the Date of Sale to the account provided by each such bidder in its bidder registration form. All sales or transfer taxes, if any, related to the sale of the Aircraft shall be paid by the purchaser to the Secured Party at the closing, and shall be in addition to the purchase price. At the closing, the purchaser shall receive a bill of sale transferring the Aircraft, without warranty or recourse by or to the Secured Party, its agents or its representatives, in form and substance acceptable to the Secured Party. 5. In the event that the Secured Party is unable for any reason to consummate the sale of the Aircraft to the Successful Bidder or the Back-Up Bidder at the public sale and to execute and deliver the closing documents, its sole liability to either such bidder shall be the return of the principal amount of the deposit. In the event that the Successful Bidder or the Back-Up Bidder is unable for any reason to consummate the purchase of the Aircraft and to execute and deliver the closing documents, the Secured Party shall retain the deposit paid by such bidder as liquidated damages for the costs of the sale and for the loss of a bargain, in lieu of all other damages. By bidding at the sale, such bidder acknowledges that it would not be possible to ascertain the Secured Party’s actual damages under such circumstances.6. Potential bidders are encouraged to perform such due diligence as they deem necessary. For further information concerning the Aircraft or the sale herein described, prospective bidders may request access to the website of Blueberry Aviation at the contact information below. All bidders and others receiving or examining non-public information will be required to enter into a non-disclosure agreement and keep the information strictly confidential. Any inspection of records or meeting or teleconference concerning the Aircraft shall be held by appointment only during regular business hours between now and the date of sale. No information provided to a bidder in response to any such request shall constitute a representation or warranty of any kind with respect to the Aircraft or the public sale.
For complete details and bid package contact:
Phone + 33 7 86 14 19 95