ICON A5
Aircraft Deposit Agreement
Buyer is making a deposit with ICON Aircraft for the purchase of an ICON A5 according to the following terms and conditions (”Deposit Agreement”). As used herein, “ICON” refers to ICON Aircraft, Inc., a Delaware corporation. This is a binding agreement. Read it carefully.
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OFFERING DESCRIPTION
This Deposit Agreement outlines the deposit terms for a production aircraft of ICON Aircraft, Inc. The first production deliveries are planned to begin in 2010. Positions will be allocated on a first come, first served basis. This Deposit Agreement is subject to the following terms:
Aircraft: ICON A5 (Standard Equipment - see Exhibit A)
Estimated Price: $139,000 + CPI
Deposit Amount: $5,000
Refundable: Yes, less a $500 processing fee
Transferable: Yes
Escrowed: Yes
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, Seller and Buyer (each a “Party,” and collectively the “Parties”) agree as follows:
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Section 1 DEPOSIT
Section 1.1 - Buyer agrees to pay the Deposit Amount set forth above (”Deposit”) for the delivery from ICON of one (1) ICON A5 aircraft with standard equipment (”Aircraft”). The Deposit shall be refundable as provided herein.
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Section 2 POSITION LIST AND DELIVERY
Section 2.1 - Upon receipt of a signed Deposit Agreement and Deposit, ICON will assign Buyer a delivery position (”Position Number”) on the position list. Delivery positions are offered on a first come, first served basis, and are subject to prior commitment and availability, as determined by ICON in its sole discretion. Production aircraft designated for ICON marketing campaigns, factory or dealer demonstrators, flight testing, or any other ICON-related activities regarding aircraft not intended for sale to the general public, are not considered part of the position list.
Section 2.2 - ICON expects deliveries of the Aircraft to begin in the year 2010. Actual production and delivery dates may vary. The scheduled date of delivery for the Aircraft (”Delivery Date”) shall be determined by ICON.
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Section 3 PURCHASE AGREEMENT
Section 3.1 - No later than six (6) months prior to delivery, ICON will inform Buyer in writing of the expected initiation of production of the Aircraft (”Production Notice”) and include an Aircraft Purchase Agreement governing the purchase of the Aircraft. Unless this Deposit Agreement has been earlier canceled, Buyer shall, within 21 days of the date of the Production Notice, select any optional equipment or services for the Aircraft and return to ICON a signed Aircraft Purchase Agreement. The Aircraft Purchase Agreement will include various terms and conditions, and depending upon the then current federal and/or state laws, may include certain conditions of purchase as required by then applicable federal and/or state laws.
Section 3.2 - Unless otherwise agreed in the Aircraft Purchase Agreement, the Aircraft shall be delivered at ICON’s U.S-based facilities.
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Section 4 SPECIFICATIONS
Section 4.1 - The PRELIMINARY Standard Aircraft Specification is shown in Exhibit A. ICON will, as part of the Aircraft Purchase Agreement, inform Buyer of the detailed specifications for the Aircraft, which will include final dimensions, standard equipment, performance specifications, documentation, options, etc. Any specifications referred to on our website or otherwise in any materials or information provided by ICON (other than the Aircraft Purchase Agreement) are preliminary only and may be changed at any time.
Section 4.2 - Buyer expressly acknowledges that Buyer has not relied on any oral or written representations except as specifically stated in the Agreement and that ICON has made no representations as to the suitability of the Aircraft for any particular purpose of Buyer. Buyer acknowledges that the Aircraft is a general aviation sport aircraft and is not suited for commercial transport or aerobatics.
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Section 5 PRICE AND PAYMENT SCHEDULE
Section 5.1 - The Estimated Price herein is the expected sales price for standard equipment at the time of this Deposit Agreement. The final purchase price (”Purchase Price”) will be listed in the Aircraft Purchase Agreement. Buyer shall make a non-refundable payment (”Progress Payment”) of 50% of the Purchase Price, including the then-current ICON list price of any selected optional equipment or services, upon executing the Aircraft Purchase Agreement. ICON must receive this Progress Payment within 30 days of the Production Notice. Additional payments, if any, will be defined in the Purchase Agreement. The balance of the Purchase Price shall be due no later than the Aircraft Delivery Date.
Section 5.2 - Payments shall be made as stipulated in the Aircraft Purchase Agreement and are subject to verification by ICON.
Section 5.3 - At Delivery Date, all deposits shall be applied to the Aircraft Purchase Price, provided that Buyer completes the purchase.
Section 5.4 - Deposits shall be held in an escrow account, currently with First Republic Trust Company, a division of Merrill Lynch Bank & Trust (”Escrow Agent”). ICON is responsible for the costs of the escrow and is entitled to any interest earned on deposited funds. The Escrow Agent may be changed by ICON in its discretion. Buyer agrees to provide information that may be requested by the Escrow Agent, including without limitation, information to confirm the Escrow Agent’s compliance with state and federal laws against terrorism and money laundering activities. The escrow agreement requires the Escrow Agent to comply with ICON’s written instructions concerning the escrowed funds. The Escrow Agent is only authorized to accept instructions from ICON. When a Buyer cancels the Deposit in accordance with the Deposit Agreement, ICON will direct the release and return the Deposit (less cancellation or other fees if applicable) to the Buyer. When a Buyer executes an Aircraft Purchase Agreement, ICON will direct the release of the Deposit to ICON to be applied toward the Purchase Price. When Buyer fails to timely cancel or execute an Aircraft Purchase Agreement, ICON will direct the release of the Deposit to ICON.
Section 5.5 - The Purchase Price is exclusive of any sales or use tax, value-added taxes, duties, registration fees or any charges that may be levied by governmental authorities in connection with the purchase, sale, transfer, use, registration, export, import of the Aircraft (collectively, “Taxes”). Taxes required by law to be charged at the point of sale will be collected by ICON.
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Section 6 TERMINATION
Section 6.1 - Buyer may cancel this Deposit Agreement by providing written notice to ICON no later than twenty-one (21) calendar days after the date of the Production Notice. In the event Buyer timely cancels this Deposit Agreement, Buyer’s Deposit will be refundable less a $500.00 processing fee. However, in the event Buyer cancels the Deposit Agreement for the stated reason that the final Purchase Price of the Aircraft in the Aircraft Purchase Agreement is higher than the Estimated Price (other than economic escalations using the Consumer Price Index for Urban Wage Earners and Clerical Workers [CPI-W; U.S. City Average] as published by the U.S. Department of Labor, Bureau of Labor Statistics, for the period from the date of this Deposit Agreement until the Delivery Date), the $500.00 processing fee will not be deducted from the refund. ICON will refund the Deposit to Buyer within 45 days of receipt of a timely cancellation notice, and will be made either by check or refunded to the credit card used for the Deposit. No interest shall accrue, or be paid, to Buyer on the refund of Deposits or other pre-delivery payments.
Section 6.2 - ICON may terminate this Deposit Agreement for cause, upon written notice to Buyer, if any of the following apply:
a. Buyer fails to enter into an Aircraft Purchase Agreement within 21 days after the date of the Production Notice; or
b. Buyer fails to make any required payments in a timely manner or otherwise fails to comply with this Deposit Agreement; or
c. A proceeding under any law of bankruptcy, insolvency or reorganization or relief of debtors is instituted by or against Buyer.
Section 6.3 - ICON will use this Deposit Agreement as an important measure of demand for the Aircraft and will commit to development and production costs accordingly. If this Deposit Agreement is terminated pursuant to Section 6.2, ICON will be damaged in a manner that will be difficult to calculate. For these reasons, if ICON terminates this Deposit Agreement under Section 6.2, ICON may cancel Buyer’s delivery position and retain all Deposits and any other pre-delivery payments made by Buyer as liquidated damages. If Buyer is unable to enter into Aircraft Purchase Agreement for reasons that are beyond Buyer’s control, then ICON, in its sole discretion, may refund all or a portion of any pre-delivery payments that have been received by ICON. Buyer acknowledges that the foregoing liquidated damages provision is an important consideration to ICON’s willingness to enter into this Deposit Agreement and is not a penalty.
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Section 7 LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE MAXIMUM LIABILITY ICON SHALL HAVE TO BUYER FOR ANY BREACH OF THIS DEPOSIT AGREEMENT OR OTHERWISE ARISING OUT OF OR RELATING TO THIS DEPOSIT AGREEMENT SHALL BE A FULL REFUND OF THE DEPOSIT MADE BY BUYER. IN NO EVENT SHALL ICON BE LIABLE FOR CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES WHATSOEVER ARISING OUT OF OR RELATING TO THIS DEPOSIT AGREEMENT.
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Section 8 ATTORNEYS’ FEES.
Should any litigation be commenced (including any proceedings in a bankruptcy court) among ICON and Buyer in connection with this Deposit Agreement, the prevailing party in such proceeding, as determined by the court, will be entitled to reimbursement of its reasonable attorneys’ fees, expenses and court costs incurred in the litigation.
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Section 9 GOVERNING LAW AND VENUE
Section 9.1 - This Deposit Agreement shall be governed by the laws of the State of California, regardless of the choice of law provisions of California or any other jurisdiction. Any and all disputes between the Parties will be heard in an appropriate federal or state court located in Los Angeles County in the State of California.
Section 9.2 - The Parties acknowledge that the state and federal courts located in Los Angeles County, California, have exclusive jurisdiction and venue under this Deposit Agreement and ICON and Buyer consent to, and hereby waive any and all objections that they may have as to jurisdiction and/or venue in any of the above courts, including any claim that any action or proceeding has been brought in an inconvenient forum.
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Section 10 SEVERABILITY
In the event that any part of this Deposit Agreement is declared by any court or other jurisdictional or administrative body to be null, void, or unenforceable, such provision shall be severed to the extent unenforceable under the applicable law, and all of the other provisions of the Deposit Agreement shall remain in full force and effect.
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Section 11 TRANSFERABILITY AND MODIFICATION
This Deposit Agreement (and the rights in the Deposit Agreement) is assignable or transferable by Buyer upon execution by Buyer and the transferee of a transfer form provided by ICON. The transfer form is available upon written request to ICON.
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Section 12 MODIFICATION
This Deposit Agreement may be amended or modified, and any of the terms, covenants, representations, warranties, or conditions may be waived, only by a written instrument executed by ICON, or in the case of a waiver, by the party waiving compliance. Any waiver by any party of any condition or breach shall not be deemed to be a further continuing waiver of any such condition or breach, or of the breach of any other provision of this Deposit Agreement. This Deposit Agreement shall be binding upon and inure to the benefit of the Parties’ successors, executors, heirs and assigns.
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Section 13 NOTICES
Section 13.1 - Any notice to be given under this Deposit Agreement may be sent by email or by pre-paid overnight delivery (for example, FedEx) to Buyer’s address given with this Order or to the address below for ICON. Each notice or demand shall be deemed to have been given or made when actually received or 24 hours after being sent, whichever occurs first.
ICON Aircraft, Inc.
12511 Beatrice Street
Los Angeles, CA 90066
deposits@iconaircraft.com
Section 13.2 - Buyer acknowledges that “documents” associated with this Order and Deposit Agreement may be digital and that such “documents” are agreed to be equivalent to “paper” documents. Also, communications to/from the email address specified by Buyer shall constitute delivery of the equivalent of “signed” documents.
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Section 14 NO WARRANTIES
BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THE AIRCRAFT PURCHASE AGREEMENT, ICON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY EXCLUDES AND DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. ALL OTHER OBLIGATIONS OR LIABILITIES OF ICON, WHETHER UNDER A THEORY OF NEGLIGENCE OR STRICT LIABILITY, CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATING TO THE SALE, USE OR OPERATION OF THE AIRCRAFT, OR OTHERWISE, ARE EXCLUDED BY ICON AND HEREBY EXPRESSLY WAIVED BY BUYER.
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Section 15 BINDING
This Deposit Agreement shall become binding upon ICON’s acceptance of the Order (by return email to Buyer confirming the Order or execution and delivery of this Agreement to Buyer) and receipt by ICON of unconditional payment of the Deposit. Buyer acknowledges and agrees that it has read, understood and agrees to the provisions hereof. Prior to acceptance, this offering is subject to change in ICON’s sole discretion at any time. There are no assurances by ICON that the terms and conditions of this Deposit Agreement, including the Purchase Price or Deposit amount, are or will be the same for all purchasers.
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Exhibit A
STANDARD AIRCRAFT SPECIFICATION (Preliminary)
ICON A5 - Amphibious Light Sport Aircraft (S-LSA)
Performance Specifications:
- ASTM Standards: Aircraft will meet or exceed the requirements as established by the ASTM F2245 standard: “Standard for Specifications for Design and Performance of a Light Sport Airplane.”
- Seats: 2
- Maximum Takeoff Weight: 1430 lbs
- Useful Load: 430 - 530 lbs (option dependent)
- Baggage: 60 lbs (maximum)
- Fuel (Auto Gas or Av Gas): 20 gal
- Maximum Speed (Vh): 105 kts (120 mph)
- Range: 300 nm
- Takeoff & Landing Distance: 750 ft
- Engine (Rotax 912 ULS): 100 hp
Standard Equipment:
- Retractable landing gear
- Folding wings (manual)
- GPS moving map
- Analog flight instrumentation (per ASTM LSA standards)
- Intercom system
Options:
- ICON Complete Airplane Parachute
- Custom aircraft towing trailer
- Automatic wingfold mechanism
- Night lighting
- Glass (LCD) multifunction display
Standard Documentation:
- Pilot Operating Handbook (POH)
- Airworthiness Certificate
- Weight and balance data