TERMS AND CONDITIONS
FOR THE SALE AT PUBLIC AUCTION
STARTING PRICE OF EUR 7,000,000
ON 3 OCTOBER 2023
AT 4 P.M. (CET)
AT THE INTERCONTINENTAL HOTEL - THE GRAND HOTEL
Place de la Comédie
33000 BORDEAUX (FRANCE)
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Hereinafter:
THE TERMS AND CONDITIONS under which it will be auctioned
By the ministry of SELAS PESTEL-DEBORD
Commissioner of justice, judicial auctioneer
Registered office: 56, rue La Fayette, 75009 Paris
E-mail: contact@pestel-debord.com
Telephone: 01.76.21.55.00
The aircraft type Dassault Falcon 7X N°232 registered TN-ELS belonging to the Republic of Congo
Ordered by the Bordeaux Court of First Instance by a ruling dated 13 December 2022 (RG n°22/05967), upheld by the Bordeaux Court of Appeal per ruling dated 29 June 2023 (RG n°23/00671).
At the request of Commissions Import Export (Commisimpex), a limited company incorporated under Congolese law and registered at the RCCM of Brazzaville under number RCCM CG/BZV/07 B412, with its registered office at 86 avenue Foch, Brazzaville (Republic of Congo), acting on behalf of its current legal representative, Mr Mohsen Mohamad Hajaij, with an address for service at the office of Carolina Cuturi-Ortega, lawyer registered with the Bordeaux Bar, 27 rue Boudet, 33000 Bordeaux, 05 57 14 46 40, cco@dynamis-europe.com
I. PROCEDURAL BACKGROUND
Under two arbitral awards dated 3 December 2000 and 21 January 2013, which have been declared enforceable in France, the Republic of Congo was ordered to pay various sums to Commisimpex.
In a ruling dated 27 February 2020 (RG n°19/19192), the Paris Court of Appeal authorised Commisimpex to take enforcement action against assets belonging to the Republic of Congo, including aircraft, with the exception of those used or intended for use in the performance of the duties of the diplomatic mission of that State.
In a ruling dated 3 June 2021 (RG n°20/00498), the Paris Court of Appeal refused to revoke the ruling of 27 February 2020. The Republic of Congo lodged an appeal before the French Cour de cassation; the case is still pending.
Meanwhile, by (bailiff) deed of attachment dated 8 June 2020, Commisimpex seized the aircraft while it was with Dassault Falcon Service at Bordeaux-Mérignac airport for maintenance work.
In a ruling dated 29 June 2020 (RG n20/80785), the Paris enforcement judge rejected the Republic of Congo's challenges against this seizure.
In a ruling dated 3 June 2021 (RG n°20/08146) (separate from the above-mentioned ruling), the Paris Court of Appeal upheld the decision of 29 June 2020. The Republic of Congo lodged an appeal before the French Cour de cassation; the case is still pending.
In a ruling dated 13 December 2022 (RG n°22/05967), the Bordeaux judicial court ordered the sale of this aircraft by public auction by Selarl Pestel-Debord, commissioner of justice, assisted by any expert of its choice.
In a ruling dated 29 June 2023 (RG n°23/00671), the Bordeaux Court of Appeal upheld the decision of 13 December 2022 and set the starting price at €7 million. This ruling may still be appealed.
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II. CONDITIONS OF THE PUBLIC AUCTION
DESIGNATION
Nature: Aircraft
Brand: Dassault
Model: Falcon 7X
N°: 232
Year: 2014
Flight hours: 1,181.25
Cycles: 715
Engines: Pratt & Whitney Canada turbofan PW307A (x3)
N° PCE - CH0723
N° PCE - CH0724
N° PCE - CH0725
APU: Honeywell – Model 36150[FN]
N°P-344
Current registration: TN-ELS
Certificate of registration: The original copy of the certificate of registration is on board the aircraft
Current place of registration: Republic of Congo (Brazzaville)
National Civil Aviation Agency of the Congo - "ANAC”
Rue de la libération de Paris - Camp Clairo - BP 128
Brazzaville (Republic of Congo)
Current location: Dassault Falcon Service (custodian)
106 avenue Marcel Dassault
33700 Mérignac (France)
CAMO: Unijet / Luxaviation (contract suspended on 12 January 2021)
Maintenance program: "Falcon Care" Dassault Aviation (expired since 17 October 2022)
Maintenance status: Dassault Falcon Service has conducted and continues to conduct preservation operations in accordance with Dassault Aviation prescriptions
Next check to be carried out: C
Available documentation: See annexes
ORIGIN OF OWNERSHIP
The aircraft belongs to the Republic of Congo (Brazzaville).
It is registered in the name of the "Présidence de la République" BP 14590
STATUS
The purchaser shall take the aircraft in the condition in which it is on the day of the sale, without being able to claim any reduction in the price or any guarantee or indemnity against the pursuing party, the commissioner of justice, the debtor or its creditors, for deterioration, repairs, lack of maintenance, latent defects, construction defects, obsolescence or error in the description, consistency and capacity of the aircraft.
Without limiting the generality of the foregoing, the pursuing party and the commissioner of justice expressly disclaim and exclude (a) any express or implied representation or warranty as to the
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airworthiness, value, design, workmanship, operation or condition of the Aircraft; (b) any express or implied representation or warranty of merchantability or fitness for a particular use or purpose ; (d) any obligation or liability for loss of use, revenue, or profit with respect to the aircraft or for any liability of purchaser to any third party or any other direct, incidental, special or consequential damages whatsoever.
The available technical information known to the pursuing party is appended hereto.
Dassault Falcon Service has declared that the maintenance contract “Falcon Care” concluded with Dassault Aviation has expired on 17 October 2022. Yet, Dassault Falcon Service has carried out and continues to carry out preservation operations (also known as storage operations) on the airframe, engines and APU of the aircraft, in accordance with Dassault Aviation's prescriptions.
The purchaser must deal with this situation, at his or her own risk and without recourse against anyone.
VISITS
A visit of the aircraft will be possible, by appointment, on 19, 26 and 28 September 2023 between 10:00 and 12:00.
Interested parties must give at least four business days prior notice and provide proof of their identity to permit access to the Dassault Falcon Service airport facilities.
MORTGAGES, LEASES AND OTHER AGREEMENTS
The pursuing party attaches hereto a certified statement of the registrations concerning the aircraft published in the International Register of Mobile Equipment on which there is no registered creditor other than the pursuing party (International Registry of International Interests in Aircraft Equipment - Cape Town Convention 2001)
To date, it has not been materially possible to obtain from ANAC a certified extract of the registrations concerning the aircraft.
The pursuing party declares that, to its knowledge, there is no lease, mortgage, rental or other agreement concluded or granted by the Republic of Congo on the aircraft.
INSURANCE AND VARIOUS SUBSCRIPTIONS
The purchaser must deal with the contracts or subscriptions relating to the aircraft that may have been or should have been entered into, without any recourse against the pursuing party or the court-appointed commissioner of justice who drafted the terms and conditions of sale.
The pursuing party cannot be held liable in the absence of insurance.
The purchaser shall be obliged to insure the aircraft from the date of the sale against all risks, with a reputable and solvent company, for a sum at least equal to the sale price.
In the event of a claim before the price has been paid in full, the indemnity shall automatically belong to the pursuing party up to the amount of the balance due on the said price in principal and interest.
In the event of a claim that is not covered due to the fault of the purchaser, the latter will nevertheless be obliged to pay the price in addition to the accessories, costs and expenses of the sale.
GUARANTEES TO BE PROVIDED BY THE PURCHASER
Any person wishing to bid must register with us beforehand, providing proof of all the elements enabling them to bid with regard to compliance rules and the 5th (EU) directive 2018/843 on the fight against money laundering and terrorist financing (LCB-FT).
In addition to the bank details (RIB or IBAN) of the account issuing the security deposit (see below) and an e-mail address, it must also provide:
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- for individuals: a copy of a passport;
- for legal entities: a “K-bis” or its foreign equivalent (certificate or extract with respect to incorporation, good standing, encumbrances, etc.), the identity, rights and a copy of the passport of the beneficial owner(s).
It must also return, before the sale, this document duly signed.
Each participant must, no later than 24 hours before the sale, provide a first demand guarantee from a leading bank, known to be solvent, established in Europe or the United States, or put under escrow within SELAS PESTEL-DEBORD, as a guarantee deposit, the sum of €500,000 (five hundred thousand euros). This deposit is intended to ensure the solvency of the bidders and, where applicable, to guarantee any default in payment of the price under the conditions defined below.
In the event of an unsuccessful bid, this deposit will be reimbursed within eight days of the sale by bank transfer only, to the account from which it was made.
In the event of a successful bid, this payment will be deducted first from the emoluments, then from the legal costs, and finally from the sale price.
BIDDDING
Registered participants will have four ways of taking part in the sale:
1. Participate physically in the sale by sending a duly authorised agent to the place of sale,
2. Participate via the INTERENCHERES platform; to do so, we invite future bidders to create an account on www.interencheres.com prior to the sale. Automatic bids are accepted.
3. Participate by placing a buy order, having previously registered a buy order with us in accordance with the applicable terms of sale (absentee bid form).
4. Participate in the sale by telephone, having previously registered a telephone bid form in accordance with the applicable conditions of sale (telephone bid form).
Our services will be available to future bidders to assist them with these procedures.
AUCTION PROCESS
The sale will be conducted by the ministry of SELAS PESTEL-DEBORD, commissioner of justice, judicial auctioneer, whose registered office is at 56, rue La Fayette, 75009 Paris.
The sale will take place at the Grand Hôtel de Bordeaux - Hôtel intercontinental, Place de la Comédie, Bordeaux.
The starting price is set at €7,000,000.
The sale will be made by designation, in a single lot.
Bids will be incremented by a minimum of €100,000 in relation to the previous bid.
The sale will be made by adjudication to the highest bidder after three reminders of the last (highest) bid.
The price is fixed and payable in euros, the currency in which the auction is conducted.
The bid is irrevocable. No claim or higher bid will be accepted once the adjudication has been announced.
PAYMENT OF THE PRICE
The buyer must pay the price, free of charge, to the Caisse des Dépôts et Consignations, within three days of the adjudication. Failing to do so, a new action will be set.
In addition to the purchase price, the purchaser will be required to pay the costs of legal proceedings and the sale fee (“emolument”), in accordance with the conditions set out below.
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The sale is not subject to value added tax except on the portion represented by the emolument .
The pursuing creditor who has become the purchaser will have the right, by declaration made to SELAS PESTEL-DEBORD within three days of the auction, to set off his claim against the price under the conditions provided for in Articles 1347 et seq. of the Civil Code.
NEW AUCTION
If the purchaser fails to pay the price, emolument or costs of the proceedings within the prescribed time, the property will be put up for sale again at the request of the pursuing creditor, a registered creditor or the debtor, under the conditions of the first sale.
Under no circumstances the defaulting purchaser will be entitled to claim for a refund of the sums paid by way of guarantee. The bank guarantee may be drawn down immediately.
The person who pursues the new sale will obtain without delay from SELAS PESTEL-DEBORD a certificate acknowledging the non-payment of the price, the emolument and/or the costs of proceedings.
This certificate will be served on the defaulting purchaser, who may contest it within fifteen days of service.
After this period, and if applicable, the decision of the execution judge, the aircraft will be put again at auction on the same conditions as the first sale.
The defaulting purchaser bears the costs of this first auction.
If the price of the new auction is lower than that of the first, the defaulting purchaser will be liable for payment of the difference and may be forced to pay by all legal means.
If the price of the second sale is higher than the first, the difference will belong to the pursuing creditor and, where applicable, to the debtor.
The purchaser of the new auction must bear the costs of the new sale.
PAYMENT OF AUCTION COSTS
The purchaser will also be required to pay a sales fee (“emolument”) of 11.9% excluding VAT (i.e. 14.28% including VAT if applicable to the purchaser).
Fees are payable in euros, the currency in which the auction is conducted.
The buyer will also be required to pay the costs of the legal proceedings , which will be announced at the time of the sale.
Emoluments and costs will be paid within three days of the auction by bank transfer to our account at the Caisse des Dépôts et Consignations, the details of which will be shown on the notice of adjudication.
Costs specifically incurred by bidders in connection with the sale remain at their expense.
PAYMENT OF STORAGE COSTS
Dassault Falcon Service (DFS) has been the custodian of the aircraft since 8 June 2020.
As such, it has a claim for custodian costs.
DFS has indicated that the amount of the custodian costs is €828,954 (excluding VAT) as at 31 August 2023 (to be updated on the day of sale), broken down as follows:
- 561,906 excluding VAT due in respect of parking charges in accordance with the tariff conditions for ground handling services (commonly known as FBO or Fixed Base Operator services) set out in the appendix;
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- 267,048 excluding VAT due in respect of preservation costs of the airframe, engines and APU referred to above.
The corresponding invoices are attached.
The total amount of the custodian costs will be updated and publicly announced on the day of the sale.
The purchaser undertakes to pay DFS directly for the custodian costs due up to the sale.
It should be noted that the DFS has already indicated that it intends to rely on its right of retention under article 2286 of the French Civil Code to guarantee payment of the custodian costs of the aircraft.
DISTRIBUTION
Unless it has been paid by way of set off, the price will be distributed, at the behest of SELAS PESTEL-DEBORD, without delay, to the pursuing creditor and to any registered creditors who have declared their claim before the sale.
In the event of difficulty, the matter will be referred to the enforcement judge of the Bordeaux judicial court.
DELIVERY
Delivery will be made only after full and irrevocable payment of the purchase price (by set-off, if any, by the pursuing creditor), and of the emolument and costs of the legal proceedings payable by the purchaser. The purchaser may not take possession of the aircraft before this.
The auctioneer will provide the buyer with a notice of adjudication acknowledging the transfer of ownership.
The auctioneer will also provide the buyer with all the technical documentation, together with two sets of keys to the aircraft in his possession.
The notice of adjudication will be notified to the custodian (currently Dassault Falcon Service). The custodian will then be ordered to immediately hand over the aircraft to the purchaser, together with all accessories, including the original copy of the certificate of incorporation, subject to the exercise of its retention right as detailed above.
After full and irrevocable payment of the price, emolument and costs, the pursuing party undertakes to remove the inscription concerning the aircraft at the International Registry of International Interests in Aircraft, referred to in annex 5.b.
The purchaser will be personally responsible for the formalities of de-registration with the ANAC and re-registration of the aircraft with the registry of his choice, without any recourse against the pursuing party.
From the date of adjudication, the purchaser will be liable for the risks, as well as for the payment of parking and preservation fees due after the sale.
The purchaser undertakes to remove and withdraw all the livery currently with the colours of the Republic of Congo. Under no circumstances it will be able to use these colours, nor the coat of arms of the Republic of Congo.
VARIOUS STATEMENTS
The pursuing party declares that, to its knowledge, several appeals are currently pending:
- Appeal before the Cour de cassation (sous RG n°21-19.150) against the judgment of 3 June 2021 (RG n°20/00498) refusing to retract the judgment of 27 February 2020 (RG n°19/19192)
- Appeal before the Cour de cassation (sous RG n°21-17.599) against the judgment of 3 June 2021 (RG n°20/08146) upholding the judgment of 29 June 2020 (RG n°20/80785) confirming the validity of the attachment
- Third-party appeal before the Paris Court of Appeal (RG n°23/09300) brought by the “Presidency of the Republic of Congo” against the judgment of 3 June 2021 (RG n°20/08146)
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- Third party appeal before the Paris Court of Appeal (RG n°23/00794) brought by Groupe Odzali and Société Berrebi against the judgment of 27 February 2020 (RG n°19/19192)
The purchaser has the possibility to visit the aircraft and analyse all available technical documentation. It has the possibility to seek the legal and technical advice of the counsel or expert of its choice to appraise the nature, the extent and consequences of its undertaking in buying this aircraft, without any recourse of any kind against the pursuing party
These terms and conditions are deposited in the offices of SELARL VINCENT PESTEL-DEBORD, Commissaire-Priseur Judiciaire, 56, rue La Fayette, PARIS 75009, where they may be consulted.
III. APPENDICES
1. Deed of seizure
2. Bordeaux Court of First Instance ruling of 13 December 2022 (RG n°22/05967)
3. Bordeaux Court of Appeal ruling of 29 June 2023 (RG n°23/00671)
4. Certificate of registration
5. Extract from available registeries
a. Steps taken with ANAC
b. Certificate of registration Cape Town Convention
6. Technical documentation available
a. CAMP Status Report
b. CAMP Due List
c. CAMP AD/SI Report
d. Log book
7. Deed of verification with photographs of the aircraft
8. Breakdown of storage costs (parking and preservation) as of 31 August 2023
9. Photos of the aircraft as of 3 August 2023
Of all the above, we have drawn up this document setting out the terms and conditions of the sale by public auction of the aircraft of the type
Dassault Falcon 7x n°232 registered TN-ELS
In light of the above, we have drawn up these specifications setting out the terms and conditions of the sale by public auction of the Dassault Falcon 7x aircraft no. 232 with registration number TN-ELS.
These specifications include the following amendments to the previous specifications dated five August 2023:
In the "STATUS" section, the words "the commissioner of justice" have been added to the 1st paragraph.
In the "DESIGNATION" section, correction of the reference to engine no. 3 (No. PCE - CH0724 replaced by PCE - CH0725).
In the "MORTGAGES, LEASES AND OTHER AGREEMENTS" section, the words "other than the pursuing creditor" have been added to the 1st paragraph.
Signed in Paris
In 4 original copies, exactly certified.
On 9 of August 2023
Vincent PESTEL-DEBORD
Commissioner of Justice
