Exhibit 10(9)
*
AIRCRAFT AND AIRFRAME PURCHASE AND SALE AGREEMENT
TOWER AIR, INC.
(Seller)
- and -
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely
as Owner Trustee
(Buyer)
In Respect of
Two Boeing Model 747-282B Aircraft
One Boeing Model 747-131 Airframe
and
Eight Xxxxx & Xxxxxxx Model JT9D-7A Engines
Dated as of October 1, 1996
TABLE OF CONTENTS
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1. DEFINITIONS AND INTERPRETATION........................................... 1
2. AGREEMENT TO SELL................................................. 4
3. DELIVERY AND ACCEPTANCE........................................... 4
4. PAYMENT OF DOWNPAYMENT............................................ 5
5. SELLER'S REPRESENTATIONS AND WARRANTIES........................... 6
6. CONDITIONS PRECEDENT.............................................. 9
7. WARRANTIES........................................................ 12
8. RISK.............................................................. 13
9. MISCELLANEOUS..................................................... 13
Schedule 1 Filings
Schedule A Description of Aircraft and Airframe N608FF
Schedule B-1 Acceptance Certificate - Aircraft N610FF
Schedule B-2 Acceptance Certificate - Aircraft N611FF
Schedule B-3 Acceptance Certificate - Airframe N608FF
Schedule C-1 Warranty Xxxx of Sale - Aircraft N610FF
Schedule C-2 Warranty Xxxx of Sale - Aircraft N611FF
Schedule C-3 Warranty Xxxx of Sale - Airframe N608FF
Schedule D Delivery Conditions
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AIRCRAFT AND AIRFRAME PURCHASE AND SALE AGREEMENT
-------------------------------------------------
THIS AGREEMENT is dated as of the 1st day of October, 1996
BETWEEN:
TOWER AIR, INC., a corporation incorporated
under the laws of the State of Delaware
(hereinafter called the "Seller")
- and -
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association,
not individually, but solely as Owner Trustee
(hereinafter called the "Buyer")
WHEREAS the Seller desires to sell to the Buyer, and the Buyer desires to
purchase from the Seller, both Aircraft and Airframe N608FF as hereinafter
provided;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants herein contained and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto
covenant and agree as follows:
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 In this Agreement, unless the context otherwise requires:
"Acceptance Certificate" means, with respect to each Aircraft and Airframe
----------------------
N608FF, means an acceptance certificate issued by the Buyer to the Seller with
respect to such Aircraft or Airframe N608FF as provided in Clause 3
substantially in the form set forth as Schedules X-0, X-0 and B-3, respectively
(collectively referred to herein as the "Acceptance Certificates");
-----------------------
"Agreement" means this Aircraft and Airframe Purchase and Sale Agreement
---------
together with the recitals and schedules hereto (which form an integral part
hereof) as originally executed by the parties hereto;
"Aircraft" means, collectively, Aircraft N610FF and Aircraft N611FF (and
--------
where the context permits references to the "Aircraft" shall include the
Aircraft Documents) and, as the context requires, shall mean each Aircraft as a
whole and any part thereof;
"Aircraft N610FF" means Airframe N610FF and its Engines (and where the
---------------
context permits references to "Aircraft N610FF" shall include the Aircraft
Documents) and, as the context requires, shall mean Aircraft N610FF as a whole
and any part thereof;
"Aircraft N611FF" means Airframe N611FF and its Engines (and where the
---------------
context permits references to "Aircraft N611FF" shall include the Aircraft
Documents) and, as the context requires, shall mean Aircraft N611FF as a whole
and any part thereof;
"Airframe" means, collectively, Airframe N608FF, Airframe N610FF and
--------
Airframe N611FF;
"Airframe N608FF" means the Boeing model 747-131 airframe described in
---------------
Schedule A-3 (excluding any engines from time to time installed thereon)
together with the APU, landing gear and any and all Parts incorporated thereon,
installed thereon or attached thereto on the Delivery Date;
"Airframe N610FF" means the Boeing model 747-282B airframe described in
---------------
Schedule A-1 excluding its Engines, but including the APU, landing gear and any
and all Parts incorporated thereon, installed thereon or attached thereto on the
Delivery Date;
"Airframe N611FF" means the Boeing model 747-282B airframe described in
---------------
Schedule A-2 excluding its Engines, but including the APU, landing gear and any
and all Parts incorporated thereon, installed thereon or attached thereto on the
Delivery Date;
"Delivery" or "Delivered" means, with respect to each Aircraft and Airframe
-------- ---------
N608FF, the time (Chicago time) at which the Buyer receives the Warranty Bills
of Sale with respect to such Aircraft or Airframe N608FF on the Delivery Date in
accordance with this Agreement;
"Delivery Date" means October 11, 1996 (Chicago time) or such other date as
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may be mutually agreed in writing between the parties hereto;
"Dollars" and the sign "$" each means, unless otherwise specifically
------- -
indicated, the lawful currency of the United States of America;
"Downpayment" means the aggregate of Two Million Three Hundred Thousand
-----------
Dollars ($2,300,000) (in respect of Aircraft N610FF, Two Million Three Hundred
Thousand Dollars ($2,300,000), in respect of Aircraft N611FF and One Million
Four Hundred Thousand Dollars ($1,400,000), in respect of Airframe N608FF;
"Engine" or "Engines" means any one or more or all, as the context may
------ -------
require, of the four (4) Xxxxx & Xxxxxxx model JT9D-7A aircraft engines,
including all quick engine change kit components normally installed thereon,
which are designated as being parts of Aircraft N610FF or any one or more or
all, as the context may require, of the four (4) Xxxxx &
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Whitney model JT9D-7A aircraft engines which are designated as being parts of
Aircraft N611FF on the Delivery Date including all quick engine change kit
components normally installed thereon, in each case as identified in Schedules
A-1 and A-2, respectively, together with all Parts incorporated in, installed on
or attached to any such Engines on the Delivery Date;
"FAA" shall have the meaning set forth in the Lease;
---
"Lease" means the Operating Lease Agreement of even date herewith between
-----
the Buyer, as lessor, and the Seller, as lessee, in respect of the Aircraft and
Airframe N608FF;
"Technical Inspection" shall have the meaning set forth in Clause 3.4;
--------------------
"Warranties" means any and all conditions, warranties, guarantees,
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representations, service contracts, contracts to stock spare parts or other
agreements of any nature whatsoever, verbal or written, express or implied,
legal, statutory, conventional, collateral or otherwise, in respect of, or that
shall in any manner apply to, Aircraft N610FF, Aircraft N611FF, Airframe N608FF,
the Engines and the Parts; and
"Warranty Bills of Sale" means with respect to each Aircraft and Airframe
----------------------
N608FF, the bills of sale issued by the Seller to the Buyer as provided in
Clause 3 with respect to such Aircraft or Airframe N608FF substantially in the
form attached hereto as Schedules C-1, C-2 and C-3, respectively;
1.2 Capitalized terms used herein without definition shall have the
respective meanings set forth in the Lease.
1.3 The words "hereof", "herein" and "hereunder" and other words of
------ ------ ---------
similar import used in this Agreement refer to this Agreement as a whole and not
to any particular part of this Agreement.
1.4 The headings of Clauses of this Agreement and the Table of Contents
are inserted for ease of reference only and shall not in any way affect the
interpretation of this Agreement.
1.5 Where the context so requires, in this Agreement words importing the
singular only shall also include the plural and vice versa.
1.6 Reference herein to any applicable law or any document, instrument or
agreement means such applicable law or such document, instrument or agreement as
originally implemented or executed, or as modified, amended or supplemented from
time to time.
1.7 Reference herein to "written" and "in writing" includes telexed and
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telecopied communications.
1.8 Unless otherwise specifically stated, reference herein to any Recital,
Clause, subclause or Schedule is a reference to such Recital, Clause, subclause
or Schedule to or of this Agreement.
1.9 Reference herein to any party shall include its permitted successors
and assigns.
2. AGREEMENT TO SELL
-----------------
2.1 The Seller agrees to sell and the Buyer agrees to buy both Aircraft
and Airframe N608FF (including, without limitation, the Aircraft Documents) on
the Delivery Date upon and subject to the terms and conditions of this Agreement
for the Downpayment plus, subject to sellers satisfaction of the conditions set
forth in Clause 4.3 hereof, the Supplemental Airframe Payment and the
Supplemental Aircraft Payment.
3. DELIVERY AND ACCEPTANCE
-----------------------
3.1 Both Aircraft and Airframe N608FF shall be delivered and accepted and
made available to the Buyer pursuant hereto on the Delivery Date.
3.2 On the Delivery Date, subject to the terms and conditions of this
Agreement, the Buyer shall execute Acceptance Certificates with respect to
Aircraft N610FF, Aircraft N611FF and Airframe N608FF and deliver the same to the
Seller and contemporaneously therewith the Buyer shall pay to the Seller, or as
the Seller may direct, the Downpayment for the purchase of Aircraft N610FF,
Aircraft N611FF and Airframe N608FF against delivery to the Buyer of the
Warranty Bills of Sale. The delivery of the Acceptance Certificates, payment of
the Downpayment and delivery of the Warranty Bills of Sale with respect to
Aircraft N610FF, Aircraft N611FF and Airframe N608FF shall occur at the time set
forth in the respective Warranty Bills of Sale, whereupon title to and ownership
of Aircraft N610FF, Aircraft N611FF and Airframe N608FF, respectively, shall
pass from the Seller to the Buyer. Subject to Clause 4.2 hereof, Seller shall
deliver the Aircraft and Airframe N608FF to Buyer at such location or locations
as Seller may select, so long as each such location is acceptable to Buyer. All
costs incurred in connection with ferrying an Aircraft or Airframe N608FF to its
delivery location shall be for the Seller's account.
3.3 Execution and delivery of the Acceptance Certificates by the Buyer
shall evidence and constitute irrevocable, final and conclusive acceptance of
Aircraft N610FF, Aircraft N611FF and Airframe N608FF by the Buyer for all
purposes hereof and shall irrevocably confirm that Aircraft N610FF, Aircraft
N611FF and Airframe N608FF are satisfactory in all respects and comply with the
requirements of this Agreement.
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3.4 Prior to the Delivery of both Aircraft and Airframe N608FF, the Buyer
shall have conducted a technical inspection (the "Technical Inspection") of both
Aircraft and Airframe N608FF, including without limitation, an inspection of the
Aircraft Documents, at the Seller's maintenance center or at such other site as
mutually agreed, the purpose of such Technical Inspection to be to allow the
Buyer to determine whether each Aircraft and Airframe N608FF satisfy the
relevant Delivery Conditions set forth in Schedule D hereto.
4. PAYMENT OF DOWNPAYMENT
----------------------
4.1 Subject to the terms and conditions of this Agreement, the Downpayment
shall be paid by the Buyer to the Seller in such manner as the Seller shall
reasonably direct in writing and upon confirmation of receipt thereof, the
Seller shall deliver the Warranty Bills of Sale to the Buyer.
4.2 Subject to the second sentence of this Clause 4.2, all payments to be
made by the Buyer to the Seller under this Agreement shall be made in full,
without any set-off or counterclaim whatsoever or any deduction or withholding
for or in respect of Taxes. The Seller agrees to indemnify the Buyer, on an
after-tax basis, from and against any and all liability for Taxes which may
arise out of the sale of the Aircraft and Airframe N608FF by the Seller to the
Buyer hereunder.
4.3 The Seller shall (i) during the period commencing on the Delivery Date
and ending on or before December 24, 1996 (the ""D" Check Period - N608FF"),
accomplish, or cause to be accomplished a "D" Check maintenance visit (including
all necessary corrosion prevention and control program tasks, the AD mandated
Section 41 terminating actions and the AD mandated pylon modification
terminating actions) for Airframe N608FF and (ii) during the period commencing
on the Delivery Date and ending on or before April 30, 1997 (the ""D" Check
Period - N611FF"), accomplish, or cause to be accomplished a "D" Check
maintenance visit (including all necessary corrosion prevention and control
program tasks and the AD mandated pylon modification terminating actions) for
Aircraft N611FF (the maintenance activities in clauses (i) and (ii) being
referred to hereinafter as the ""D" Check Maintenance Visit N611FF" and the "D"
Check Maintenance Visit N608FF", respectively, and, collectively the ""D" Check
Maintenance Visits"). The "D" Check Maintenance Visits shall be accomplished
pursuant to the "D" Check Maintenance Agreements (as defined in Clause 6.1(v)
hereof). The Seller shall not change the workscope in any "D" Check Maintenance
Agreement without the Buyer's prior written consent.
Not later than ten days after the completion of each "D" Check Maintenance
Visit, the Seller shall provide written notice (each, an ""D" Check
Accomplishment Notice") setting forth in reasonable detail the "D" Check
Maintenance Visit which has been completed. The Seller shall attach to each "D"
Check Accomplishment Notice a copy of all invoices received from the maintenance
facility with respect to such completed "D" Check Maintenance Visit and such
other evidence of the completion of such "D" Check Maintenance Visit as the
Buyer
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may request. On the first Business Day of calendar month following receipt of
each "D" Check Accomplishment Notice, so long as (i) the Buyer shall have
inspected and found satisfactory the relevant "D" Check Maintenance Visit, (ii)
no Event of Default shall have occurred and be continuing, and (iii) the Seller
shall have suffered no significant degradation in its financial position or then
current financial outlook, both as determined by the Buyer in its sole
discretion, the Buyer shall pay the Seller (or, if the Seller has not yet paid
the maintenance facility's invoice for such "D" Check Maintenance Visit, the
Buyer shall pay the maintenance facility directly) as additional consideration
for the purchase of Aircraft N611FF or Airframe N608FF, as the case may be, (x)
in respect of the "D" Check Maintenance Visit N608FF, an amount not to exceed
50% of the Seller's actual cost to accomplish the "D" Check Maintenance Visit
N608FF, up to a maximum amount of $2,000,000, (the "Supplemental Airframe
Payment") and (y) in respect of the "D" Check Maintenance Visit N611FF, an
amount not to exceed 71% of the Seller's actual cost to accomplish the "D" Check
Maintenance Visit N611FF, up to a maximum amount of $2,125,000 (the
"Supplemental Aircraft Payment"); provided, however, if a "D" Check
Accomplishment Notice is received less than five Business Days prior to the end
of a calendar month, the Supplemental Airframe Payment or the Supplemental
Aircraft Payment, as the case may be, shall be paid on the first Business Day of
the succeeding second calendar month; provided, further, that if Buyer has
failed to inspect the relevant "D" Check Maintenance Visit in time to make the
relevant payment, then Buyer shall make such payment on the first Business Day
of the month following the month in which the Buyer makes such inspection.
5. SELLER'S REPRESENTATIONS AND WARRANTIES
---------------------------------------
5.1 SUBJECT TO CLAUSE 5.3, THE SELLER SHALL NOT MAKE, GIVE OR BE DEEMED TO
HAVE MADE OR GIVEN, AND THE SELLER HEREBY EXPRESSLY DISCLAIMS, ANY
REPRESENTATION, WARRANTY OR GUARANTEE OF ANY KIND WHATSOEVER, EXPRESS OR
IMPLIED, AS TO THE TITLE, AIRWORTHINESS, VALUE, CONDITION, MERCHANTABILITY,
DESIGN, OPERATION, SERVICEABILITY, OR FITNESS FOR USE FOR ANY PURPOSE OF THE
AIRCRAFT AND AIRFRAME N608FF OR ANY PART THEREOF, OR ANY OTHER REPRESENTATION,
WARRANTY OR GUARANTEE OF ANY KIND WHATSOEVER (ARISING BY LAW OR OTHERWISE),
EXPRESS OR IMPLIED, WITH RESPECT TO THE AIRCRAFT AND AIRFRAME N608FF OR ANY PART
THEREOF, ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE, ANY IMPLIED WARRANTY OF FITNESS OR ANY OBLIGATION OR
LIABILITY OF THE SELLER ARISING IN CONTRACT OR TORT, WHETHER OR NOT ARISING FROM
THE NEGLIGENCE OF THE SELLER, ACTUAL OR IMPUTED, OR FOR LOSS OF USE, REVENUE OR
PROFIT WITH RESPECT TO THE AIRCRAFT AND AIRFRAME N608FF OR ANY PART THEREOF OR
ANY OTHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE.
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5.2 Subject to Clause 5.3(c), the Aircraft and Airframe N608FF are being
sold by the Seller to the Buyer "AS IS, WHERE IS".
5.3 The Seller represents and warrants to the Buyer that:
(a) the Seller has good and marketable title to the Aircraft and
Airframe N608FF, free and clear of all Liens;
(b) upon Delivery, the Seller shall have validly conveyed to the
Buyer all the right, title and interest of the Seller in and to the Aircraft and
Airframe N608FF;
(c) upon Delivery:
(i) the Aircraft and Airframe N608FF shall each have a valid
certificate of airworthiness issued by the Aviation
Authority; and
(ii) the Aircraft and Airframe N608FF shall be in compliance
with Maintenance Program and shall otherwise be in the
condition required by the Lease;
(d) no event has occurred which constitutes, or with the giving of
notice and/or the lapse of time and/or a relevant determination would
constitute, a contravention of, or default under, any agreement or instrument by
which the Seller or any of its assets is bound or affected. No Default or Event
of Default has occurred or will occur solely as a result of the consummation of
the transactions contemplated hereby;
(e) no litigation, arbitration or administrative proceeding or claim
is presently in progress or pending or threatened against (or involving) the
Aircraft, Airframe N608FF or the transactions contemplated hereby or by the
other Operative Documents;
(f) the chief executive office and chief place of business (as such
terms are defined in Article 9 of the Uniform Commercial Code as in effect in
the State of New York) of the Seller are located at Xxxxxx Xx. 00, XXX
Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxx, XX 00000, and the Seller agrees to give the
Buyer at least 30 days' prior written notice of any relocation of said chief
executive office or chief place of business from its present location;
(g) the Seller (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to conduct the business in which it is
currently engaged, (c) is in
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compliance with its organizational documents and (d) to the best of Seller's
knowledge, is in compliance with all Requirements of Law;
(h) the Seller has the power and authority to make, deliver and perform the
transactions contemplated in the Operative Documents to which it is a party. To
the best of Seller's knowledge, no consent or authorization of, filing with or
other act by or in respect of any governmental authority is required in
connection with the borrowing hereunder or with the execution, delivery,
performance, validity or enforceability of the Operative Documents except for
any filings necessary to register and operate the Aircraft and Airframe N608FF.
This Agreement has been, and each other Operative Documents to which it is to be
a party will be, duly executed and delivered on behalf of the Seller. This
Agreement constitutes, and each other Operative Document to which it is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law);
(i) the execution, delivery and performance of this Agreement and the other
Operative Documents will not violate any Requirement of Law or Contractual
Obligation of the Seller or the organizational documents of the Seller and to
the best of Seller's knowledge will not result in, or require, the creation or
imposition of any security interest (other than Permitted Liens) on any of its
or its properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation;
(j) each of the "D" Check Maintenance Agreements and the Leasehold
Improvements Agreements contains provisions allowing the Buyer to inspect the
work being performed under such agreements; and
(k) the representations and warranties given by the Seller herein shall
survive the completion of the transactions contemplated herein.
5.4 The Buyer represents and warrants to the Seller that:
(a) the Buyer (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the power and
authority, and the legal right, to conduct the business in which it is currently
engaged, (c) is in compliance with its organizational documents and (d) to the
best of Buyer's knowledge, is in compliance with all Requirements of Law;
(b) the Buyer has the power and authority to make, deliver and perform the
transactions contemplated in the Operative Documents to which it is a party. To
the
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best of Buyer's knowledge, no consent or authorization of, filing with or other
act by or in respect of any governmental authority is required in connection
with the borrowing hereunder or with the execution, delivery, performance,
validity or enforceability of the Operative Documents except for any filings
necessary to register and operate the Aircraft and Airframe N608FF. This
Agreement has been, and each other Operative Documents to which it is to be a
party will be, duly executed and delivered on behalf of the Buyer. This
Agreement constitutes, and each other Operative Document to which it is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of the Buyer enforceable against the Buyer in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law);
(c) the execution, delivery and performance of this Agreement and will not
violate any Requirement of Law or Contractual Obligation of the Buyer or the
organizational documents of the Buyer and to the best of Buyer's knowledge will
not result in, or require, the creation or imposition of any security interest
(other than Permitted Liens) on any of its or its properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation; and
(d) the representations and warranties given by the Seller herein shall
survive the completion of the transactions contemplated herein.
6. CONDITIONS PRECEDENT
--------------------
6.1 The purchase by the Buyer of both Aircraft and Airframe N608FF are
subject to and conditional upon the fulfillment or waiver of the following terms
and conditions at or prior to the Delivery of both Aircraft and Airframe N608FF:
(a) the Buyer shall have received each of the Operative Documents,
duly authorized, executed and delivered by all parties thereto in form and
substance satisfactory to the Buyer;
(b) the Buyer shall have a duly executed officer's incumbency
certificate of the Seller in form and substance satisfactory to the Buyer;
(c) the Buyer shall have received independent insurance broker's
certificates, in form and substance satisfactory to the Buyer relating to
the Aircraft and Airframe N608FF demonstrating, among other things,
Seller's compliance with Section 11 of the Lease;
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(d) the Buyer shall have received a letter of undertaking from an
independent insurance broker, in form and substance satisfactory to the Buyer;
(e) the Buyer shall have received a copy of the resolutions of the Board
of Directors or other competent authority of the Seller with respect to the due
authorization of the transactions contemplated by this Agreement and the other
Operative Documents, certified by the Seller;
(f) the Buyer shall have received true and complete copies of (i) the
Certificate of Incorporation of the Seller, (ii) the By-laws of the Seller and
(iii) a good standing certificate for Seller in the States of Delaware and New
York;
(g) the consummation of the transactions contemplated hereby shall not
contravene, violate or conflict with, nor involve the Buyer in any violation of,
any Requirement of Law or Contractual Obligation of the Seller;
(h) the Buyer shall have received a copy, certified as true and correct by
an officer of the Seller, of each approval and consent, if any, of any
governmental or other regulatory authorities in the United States or any other
country or place, which are necessary for the execution, performance and
delivery of each of the Operative Documents by each of the parties thereto;
(i) the Buyer shall have received evidence satisfactory to the Buyer that
the Aircraft and Airframe N608FF are the property of the Seller free and clear
of all security interests and adverse claims or rights;
(j) no Default, Event of Default, Event of Loss or event which, with the
pass of time, is capable of becoming an Event of Loss, to any Aircraft or
Airframe N608FF shall have occurred;
(k) no action or proceeding shall have been instituted nor shall any
governmental action be threatened before any court or governmental agency, nor
shall any order, judgment or decree have been issued or proposed to be issued by
any court or governmental agency pertaining in any way to the Aircraft, Airframe
N608FF or to the transactions contemplated by this Agreement;
(l) there shall not have been, in the opinion of the Buyer, any material
adverse change in the business, operations, property or condition (financial or
other) of the Seller;
(m) the representations and warranties made by the Seller in this
Agreement and each other Operative Document shall be true and correct on and as
of the Delivery Date;
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(n) the Seller shall have paid or made arrangements for the payment of all
agreed upon and reasonable expenses incurred by the Buyer in connection with the
transactions contemplated hereby;
(o) the filings referred to on Schedule 1 shall have been filed or
recorded in the places indicated;
(p) the Buyer shall have received such further documents, instruments and
agreements as the Buyer shall reasonably require in connection with the
transactions contemplated by the Operative Documents;
(q) the Buyer shall have received an Appraisal, in form and substance
satisfactory to it, including as to the current and future fair market values of
each of the Aircraft and Airframe N608FF;
(r) the Buyer shall have completed its Technical Inspection of each of the
Aircraft and Airframe N608FF to its satisfaction;
(s) Buyer shall have received the opinion of Xxxxxxxxx, Xxxxxx & Xxxxxxxx,
FAA counsel, in form and substance reasonably satisfactory to it and addressed
to the Buyer;
(t) Buyer shall have received the opinion of Hewes, Gelband, Xxxxxxxxx &
Dann, P.C., counsel to Seller, in form and substance reasonably satisfactory to
it and addressed to the Buyer;
(u) the Buyer shall have entered into, and provided copies to the Seller
of, contracts to accomplish the "D" Check Maintenance Visit - Aircraft N610FF
(the ""D" Check Maintenance Agreement N610FF") and the Engine Improvements (the
"Engine Improvements Agreement" and, collectively with the "D" Check Maintenance
Agreement, the "Leasehold Improvements Agreements"). Each Leasehold
Improvements Agreement shall contain a detailed description of the workscope of
such Leasehold Improvements and the maintenance facility that shall accomplish
such Leasehold Improvements. Each of the workscope, the maintenance facility
and the Leasehold Improvements Agreements shall be satisfactory to the Buyer.
Each such Leasehold Improvements Agreement shall specify that Buyer, or its
designee, shall have the right to inspect the Leasehold Improvements both during
and after their accomplishment.
(v) Seller shall have entered into a contract to accomplish the "D" Check
Maintenance Visit N608FF (the "D" Check Maintenance Agreement-Airframe N608FF")
and the "D" Check Visit N611FF (the "D" Check Maintenance Agreement-Aircraft
N611FF" and, collectively with the "D" Check Maintenance Agreement-
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Airframe N608FF the ""D" Check Maintenance Agreements"). Each "D" Check
Maintenance Agreement shall contain a detailed description of the workscope of
the relevant "D" Check Maintenance Visit N611FF or "D" Check Maintenance Visit
N608FF, as the case may be, and the maintenance facility that shall accomplish
such "D" Check Maintenance Visit N611FF or "D" Check Maintenance Visit N608FF,
as the case may be, and each of the workscope and the maintenance facility shall
be satisfactory to the Buyer. Each "D" Check Maintenance Agreement shall specify
that the Buyer, or its designee, shall have the right to inspect the relevant
"D" Check Maintenance Visit both during and after its accomplishment; and
(w) Seller shall have made the $916,000 payment to the "D" Check
maintenance provider for the "D" Check Maintenance Visit N608FF and provided
such evidence thereof as the Buyer may reasonably request.
6.2 The foregoing conditions shall be for the benefit of the Buyer and
may, without prejudice to any of the warranties or covenants which are preserved
(dealing with or similar to the condition waived), be waived by the Buyer in
writing, in whole or in part, at any time. In case any of the conditions shall
not be fulfilled, or waived by the Buyer, at or before the Delivery of the
Aircraft, the Buyer may rescind or terminate this Agreement by written notice by
the Buyer to the Seller and, in such event, the Buyer shall be released from all
obligations hereunder and, unless the Buyer can show that the condition or
conditions for the non-performance of which the Buyer so rescinded this
Agreement are or were reasonably capable of being performed or caused to be
performed by the Seller, then the Seller shall also be released from all
obligations hereunder.
6.3 The sale by the Seller of the Aircraft and Airframe N608FF is subject
to and conditional on the fulfillment or waiver of the following terms and
conditions at or prior to the Delivery of the Aircraft and Airframe N608FF:
(a) the Seller shall have received the duly executed Acceptance
Certificates from the Buyer with respect to the Aircraft and Airframe
N608FF;
(b) the Seller shall have received the Downpayment from the Buyer in
the manner provided for by Clause 4; and
(c) the representations and warranties made by the Seller in this
Agreement and each other Operative Document shall be true and correct on
and as of the Delivery Date.
6.4 The foregoing conditions shall be for the benefit of the Seller and
may, without prejudice to any of the warranties or covenants which are preserved
(dealing with or similar to the condition waived), be waived by it in writing,
in whole or in part, at any time. In case any of the said conditions shall not
be fulfilled, or waived by the Seller, at or before the
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Delivery, the Seller may rescind or terminate this Agreement by written notice
to the Buyer and, in such event, the Seller shall be released from all
obligations hereunder and, unless the Seller can show that the condition or
conditions for the non-performance of which the Seller so rescinded this
Agreement are or were reasonably capable of being performed or caused to be
performed by the Buyer, then the Buyer shall also be released from all
obligations hereunder.
7. WARRANTIES
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7.1 In connection with the sale of the Aircraft and Airframe N608FF to the
Buyer, the Seller hereby assigns to the Buyer such assignable rights as the
Seller may have under any of the Warranties with respect to the Aircraft and
Airframe N608FF. The Seller hereby appoints the Buyer its agent and attorney,
for and in the Seller's own name and behalf, to make and enforce, at the Buyer's
sole cost and expense, any claim which the Seller may have under any of the
Warranties. To the extent that any Warranty may not be assigned to the Buyer,
the Seller hereby agrees to hold such Warranty in trust for and on behalf of the
Buyer. The Seller agrees, at the Buyer's sole cost, expense and reasonable
request, to join with the Buyer in any claim, action, suit or proceeding arising
out of or in connection with any such Warranties, other than any claim, action,
suit or proceeding in which the Seller and the Buyer are adverse in interest, or
to assign to the Buyer the Seller's right to do so, the whole at the option of
the Buyer.
8. RISK
----
8.1 Risk of loss of or damage to the Aircraft and Airframe N608FF shall
pass to the Buyer upon the transfer of title to the Buyer on Delivery. Should
an Event of Loss, or an event which, with the passage of time, is capable of
becoming an Event of Loss, occur with respect to either Aircraft or the Airframe
N608FF prior to Delivery, the parties shall have no further liability to one
another under this Agreement with respect to the purchase and sale of such
Aircraft or Airframe N608FF and this Agreement shall terminate. At Delivery,
risk of loss of or damage to the Aircraft and Airframe N608FF shall be governed
by the Lease.
9. MISCELLANEOUS
-------------
9.1 Amendments. This Agreement may not be amended except by an agreement
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in writing between the parties hereto.
9.2 Severability. Any provision of this Agreement that is prohibited or
------------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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9.3 Time of the Essence. Time is of the essence with respect to the
-------------------
performance by the parties of their respective obligations hereunder.
9.4 Notices. Every notice, request, demand or other communication under
-------
this Agreement:
(a) shall be in writing in the English language and shall be sent by
courier or telefax, as to each party hereto, to it at its address set forth
herein or at such other address as shall have been or be designated by it in a
written notice to the other party hereto. All such notices, requests, demands,
and other communications shall be deemed to have been given when delivered or
sent, as the case may be; and
(b) shall be sent:
if to the Buyer at:
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Department
Telephone No.: 000-000-0000
Telefax No.: 000-000-0000
with a copy to:
Sanwa Business Credit Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President, Aircraft Finance
Telephone No.: 000-000-0000
Telefax No.: 000-000-0000
and
Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
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Telephone No.: 000-000-0000
Telefax No.: 000-000-0000
if to the Seller, at:
Tower Air, Inc.
Xxxxxx Xx. 00
XXX Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: 000-000-0000
Telefax No.: 000-000-0000
9.5 Miscellaneous; Governing Law; Expenses.
--------------------------------------
(a) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Lessee hereby
waives any provision of law which renders any provisions hereof prohibited or
unenforceable in any respect. No term or provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which the enforcement of the change, waiver,
discharge or termination is sought. The section and paragraph headings in this
Agreement and the table of contents are for convenience of reference only and
shall not modify, define, expand or limit any of the terms or provisions hereof
and all references herein to numbered sections, unless otherwise indicated, are
to sections of this Agreement. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument. The representations, warranties, covenants,
agreements and indemnities of the Buyer and Seller set forth in this Agreement
and Buyer's and Seller's obligations hereunder, shall survive the expiration or
other termination of this Agreement to the extent required for full performance
and satisfaction thereof.
(b) THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. This Agreement is being delivered in
Chicago, Illinois.
(c) Regardless of whether or not the transactions contemplated hereby
are consummated, the Seller agrees (a) to pay or reimburse the Buyer for all its
out-of-pocket costs and reasonable expenses incurred in connection with the
development, preparation and
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execution of this Agreement and any other documents prepared in connection
herewith, and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Buyer, (b) to pay or reimburse Buyer for all its out-of-pocket
costs and expenses incurred in connection with any amendment, supplement or
modification to this Agreement, including without limitation, the reasonable
fees and disbursements of counsel to the Buyer, (c) to pay or to reimburse the
Buyer for all its costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, and any such other
documents, including, without limitation, reasonable fees and disbursements of
counsel to the Buyer and appraisals obtained prior to and after the Delivery
Date, and (d) to pay, indemnify, and hold the Buyer harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, this Agreement and any such other documents. The terms of this
Agreement supersede in their entirety any prior written or oral statements made
by the Buyer or the Seller.
(d) The Seller (a) hereby irrevocably submits itself to the non-
exclusive jurisdiction of (i) the courts of the State of Illinois and (ii) any
United States District Court in Illinois for the purposes of any suit, action or
other proceeding arising out of this Agreement or any other Operative Document,
or the subject matter hereof or thereof or any of the transactions contemplated
hereby or thereby, brought by or on behalf of the Seller or its respective
successors, subrogees or assigns, and (b) hereby irrevocably agrees that all
claims in respect of such action or proceeding shall be heard and determined in
either such Illinois State or Federal court.
THE SELLER HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO
WHICH IT IS A PARTY INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER AND
WHETHER ARISING OR ASSERTED BEFORE OR AFTER THE DATE HEREOF OR BEFORE OR AFTER
THE PAYMENT, OBSERVANCE AND PERFORMANCE OF THE SELLER'S OBLIGATIONS UNDER THIS
AGREEMENT.
* * *
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IN WITNESS WHEREOF the parties hereto have entered into this Agreement as of the
day and year first above written.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not individually,
but solely as Owner Trustee,
Buyer
By: /s/ Xxxx Xxxxxx
------------------------------
TOWER AIR, INC.,
Seller
By: /s/ Xxxxxx Xxxxxxx
------------------------------
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