EXHIBIT 10 (n)
USED AIRCRAFT SALES AGREEMENT
BETWEEN
ABX AIR, INC.,
a Delaware corporation
AND
KC-ONE, INC.
KC-TWO, INC.
KC-THREE, INC.,
each a Japanese corporation
Relating to Nine BOEING Model 767-281 Aircraft
TABLE OF CONTENTS
Page
----
ARTICLE 1. Subject Matter of Sale......................... 1
1.1 Aircraft....................................... 1
1.2 Sale of the Aircraft........................... 2
1.3 Further Documents or Necessary Action.......... 2
ARTICLE 2. Delivery of the Aircraft, Title and Risk
of Loss................................... 2
2.1 Time of Delivery............................... 2
2.2 Place of Delivery.............................. 3
2.3 Title and Risk of Loss......................... 3
2.4 Documents of Title............................. 3
2.5 Acceptance Certificate......................... 3
2.6 Tax Indemnity.................................. 3
ARTICLE 3. Purchase Price and Payment Terms............... 4
3.1 Purchase Price................................. 4
3.2 Deposits....................................... 4
3.3 Standby Letter of Credit....................... 5
3.4 Payment for the Aircraft....................... 6
3.5 Payment in U.S. Funds.......................... 7
3.6 Guaranties..................................... 7
3.7 Adequate Assurances............................ 8
ARTICLE 4. Condition of Aircraft.......................... 9
4.1 General Condition.............................. 9
4.2 Condition of Airframe.......................... 9
4.3 Condition of Controlled Components............. 10
4.4 Condition of Installed Engines................. 10
4.5 Satisfaction of Condition Requirements......... 10
4.6 Effect of Delivery Conditions.................. 10
ARTICLE 5. Representations and Warranties................. 10
5.1 Seller's Representations....................... 10
5.2 Purchaser's Representations.................... 11
5.3 Disclaimer of Other Warranties or
Representations........................... 12
ARTICLE 6. Covenants...................................... 13
6.1 Covenants of Seller............................ 13
6.2 Covenants of Purchaser......................... 14
ARTICLE 7. Conditions to Purchaser's Obligation to
Purchase.................................. 16
7.1 General Conditions Precedent to Obligations
of Purchaser.............................. 16
7.2 Specific Conditions Precedent to Obligations
of Purchaser.............................. 17
7.3 Effect of Failure of Conditions................ 20
ARTICLE 8. Conditions to Seller's Obligation to Sell...... 20
8.1 General Conditions Precedent to Obligations
of Seller................................. 20
8.2 Specific Conditions Precedent to Obligations
of Seller................................. 21
ARTICLE 9. Termination.................................... 22
9.1 Termination by Purchaser....................... 22
9.2 Termination by Seller.......................... 22
9.3 Event of Termination........................... 23
9.4 Excusable Delay................................ 25
9.5 Effect of Termination by Purchaser............. 26
9.6 Effect of Termination by Seller................ 27
9.7 Marketing of Aircraft.......................... 27
ARTICLE 10. Miscellaneous.................................. 28
10.1 Costs and Fees................................. 28
10.2 Indemnity Against Brokers and Finders.......... 28
10.3 Governing Law.................................. 28
10.4 Consent to Jurisdiction, Waiver of Immunities.. 28
10.5 Inspections.................................... 28
10.6 Notices........................................ 29
10.7 Entire Agreement............................... 30
10.8 Assignment..................................... 30
10.9 Time........................................... 30
10.10 Paragraph Headings............................. 31
10.11 Severability................................... 31
10.12 Counterparts................................... 31
10.13 Attorneys' Fees................................ 31
10.14 Disclosure of Terms............................ 31
Exhibits
Exhibit A - Used Aircraft Identification
Exhibit B - Xxxx of Sale
Exhibit C - Acceptance Certificate
Exhibit D - Standby Letter of Credit
Exhibit E - Document Escrow Letter
Exhibit F - Funds Escrow Agreement
Exhibit G - Airborne Guaranty
Exhibit H - Itochu Guaranty
Exhibit I - Aircraft Documentation
USED AIRCRAFT SALES AGREEMENT
RELATING TO NINE BOEING MODEL 767-281 AIRCRAFT
THIS USED AIRCRAFT SALES AGREEMENT is made as of the 22 day of
December, 1995 (hereinafter called the "Agreement") by and between ABX AIR,
INC., a corporation organized and existing under the laws of Delaware of
the United States of America and having its principal office at 000 Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxx 00000, X.X.X. (hereinafter referred to as the
"Purchaser") and KC-ONE, INC. ("KC1"), KC-TWO, INC. ("KC2"), and KC-THREE,
INC. ("KC3"), each a corporation organized and existing under the laws of
Japan and having its principal office at 0-0, Xxxx-Xxxxxx 0-Xxxxx,
Xxxxxx-xx, Xxxxx 000-00, Xxxxx (hereinafter referred to collectively as
the "Seller").
W I T N E S S E T H
WHEREAS, Seller is the owner of nine (9) Boeing Model 767-281 used
aircraft, each of which is currently being leased to, operated, and
maintained by All Nippon Airways, Co., Ltd. ("XXX"),
WHEREAS, subject to the terms of this Agreement, Seller desires to
sell to Purchaser, and Purchaser desires to purchase from Seller, all nine
(9) of the aircraft as hereinafter set forth,
WHEREAS, Itochu Corporation ("Itochu") will provide a guaranty of the
Seller's obligations under this Agreement, and
WHEREAS, Purchaser is on this date entering into an Used Aircraft
Sales Agreement with Marubeni Airleasing (U.K.) Ltd. ("Marubeni") with
respect to the purchase of three (3) Boeing Model 767-281 used aircraft,
which used aircraft are also being leased to, operated and maintained by
XXX (as amended, the "Marubeni Purchase Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good valuable consideration,
the parties hereby agree as follows:
ARTICLE 1.
Subject Matter of Sale.
1.1 Aircraft. For the purpose of this Agreement the term "Aircraft"
shall mean each of nine (9) Boeing Model 767-281 used aircraft bearing
Manufacturer's Serial Numbers provided in Exhibit A hereto, (i) including
with respect to each Aircraft, two (2) General Electric Model CF6-80A
engines, (ii) the equipment, accessories, parts and other property
installed in or appurtenant to each Aircraft at the time of delivery
thereof to Purchaser, and (iii) all related Aircraft Documentation, as such
term is defined in Section 6.1(a) hereof. "Aircraft" may, where the
context so indicates, also refer to all of the Aircraft to be sold
hereunder.
1.2 Sale of the Aircraft. Subject to the terms and conditions of
this Agreement, Seller shall sell and deliver to Purchaser and Purchaser
shall purchase and accept from Seller each of the nine (9) Aircraft in
accordance with this Agreement.
1.3 Further Documents or Necessary Action. Purchaser and Seller
shall each take (and, except as provided herein, at such party's own
expense) all such actions as may be reasonably necessary or appropriate in
order to effectuate the transactions contemplated hereby provided that this
Section 1.3 shall not prejudice the provisions of Section 9.4 hereof.
ARTICLE 2.
Delivery of the Aircraft, Title and Risk of Loss.
2.1 Time of Delivery.
a. Exhibit A hereto sets forth the anticipated month for
delivery of each Aircraft ("Target Month"), which represents Seller's
current best estimate of the likely month such Aircraft will be available
for delivery to Purchaser. The delivery date for each Aircraft shall be a
day, other than a Saturday or a Sunday, on which banks are neither
authorized nor required to close in London, Tokyo or New York (such a day
being a "Business Day").
b. Seller shall notify Purchaser in writing of the actual
delivery date of each Aircraft ("Delivery Notice") at latest [ * ] calendar
days prior to the first day of the relevant Target Month for such Aircraft.
c. Seller shall have the right to reschedule the delivery date
of each Aircraft for up to [ * ] calendar days after the end of the
relevant Target Month in which such delivery is scheduled hereunder. If
Seller elects to reschedule the delivery date, written notice will be
provided to Purchaser at the latest [ * ] calendar days prior to the date
set forth in the Delivery Notice. Such notice, provided by Seller to
Purchaser, will include the new delivery date for such Aircraft. No
rescheduling of a delivery date with respect to any Aircraft shall
necessarily modify any subsequent Target Month or delivery date with
respect to any other Aircraft.
d. The delivery date may also be rescheduled pursuant to
Excusable Delay as provided under Section 9.4 hereof. Seller shall give
Purchaser notice of the rescheduled delivery date (being a date after the
event of Excusable Delay has been corrected or waived).
2.2 Place of Delivery. The Aircraft shall be delivered to Purchaser
at an XXX maintenance facility in Japan or at such alternate site(s)
mutually acceptable to Purchaser and Seller (an "Other Location").
2.3 Title and Risk of Loss. Title to and risk of loss or damage to
each Aircraft shall pass from Seller to Purchaser upon the delivery of such
Aircraft to Purchaser in accordance with this Agreement and receipt by
Seller of the full Purchase Price with respect to such Aircraft.
2.4 Documents of Title. In connection with delivery of each
Aircraft, Seller shall release or caused to be released to Purchaser: (i)
a xxxx of sale on AC Form 8052-2 (or its successor form) for each such
Aircraft executed and delivered by Seller in favor of Purchaser in form
suitable for filing and recording with the Federal Aviation Administration
of the United States ("FAA"); and (ii) a xxxx of sale, in form attached
hereto and made a part hereof as Exhibit B.
2.5 Acceptance Certificate. Upon conclusion of the inspection of the
Aircraft as provided under Section 7.2(d), Purchaser shall execute an
acceptance certificate (the "Acceptance Certificate"). The Acceptance
Certificate shall be in the form of Exhibit C attached hereto. Purchaser
shall not unreasonably withhold execution of the Acceptance Certificate and
such execution shall constitute acknowledgment of satisfaction by Seller of
the Delivery Conditions set forth in Section 4 with respect to such
Aircraft.
2.6 Tax Indemnity. Purchaser agrees to pay any and all taxes,
assessments, duties, and charges (including, without limitation, any sales,
value-added, transfer or consumption taxes, withholding taxes and stamp or
similar duties) with respect to the execution and delivery of this
Agreement or any of the documents contemplated hereby, the sale or purchase
of any Aircraft, and the payment of the Purchase Price for any Aircraft or
any deposit or other payment made or to be made to Seller under or pursuant
to this Agreement other than any tax imposed on Seller by Seller's home
jurisdiction on the income of Seller arising out of the sale of any
Aircraft pursuant to this Agreement (an "Indemnified Tax"). In the event
that Purchaser fails to pay any Indemnified Tax and such Indemnified Tax is
levied upon, assessed against, collected from, or otherwise imposed on the
Seller, Purchaser shall immediately upon demand indemnify, protect, defend
and hold the Seller harmless from and against all such Indemnified Taxes,
together with any interest, penalties or other additions to such tax, and
other costs (including, without limitation, attorneys' fees and other
professional fees) incurred by Seller in connection with such Indemnified
Tax or its enforcement of this Section 2.6. Seller agrees to provide
reasonable assistance and cooperation to Purchaser with respect to
obtaining tax exemptions reasonably available.
If a written claim is made by any tax authority against Seller with
respect to any Indemnified Tax, Seller shall promptly notify Purchaser. If
reasonably requested by Purchaser in writing (and if requested by Seller,
after Purchaser shall have delivered to Seller (i) an opinion of counsel
for Purchaser reasonably satisfactory to Seller that there is a reasonable
good faith basis for a contest and (ii) assurances from Purchaser in form
reasonably satisfactory to Seller to indemnify Seller if the claim is
adversely decided), Seller shall, at the expense of Purchaser (including,
without limitation, all legal and accountants' fees and disbursements,
penalties and interest), at Purchaser's direction and using counsel
acceptable to Purchaser, contest in the name of Seller or, if requested by
Purchaser, contest in the name of Purchaser, if permissible under
applicable law (or permit Purchaser, if desired by Seller, to contest in
the name of Purchaser) the validity, applicability or amount of such
Indemnified Tax by (i) if permitted by applicable law without adverse
consequences to Seller, resisting payment thereof, (ii) paying under
protest, if protest is necessary or proper, and (iii) if payment be made,
using reasonable efforts to obtain a refund thereof in appropriate
administrative and judicial proceedings. If Seller shall obtain a refund
of all or any part of the Indemnified Tax paid by Purchaser, Seller shall
pay Purchaser the amount of such refund, plus, on an after tax basis, any
interest thereon obtained by Seller from the taxing authority if fairly
attributable to such Indemnified Tax. If such tax contest shall cause
Seller undue hardship or burden, Seller and Purchaser shall consult in good
faith concerning any tax contest to be undertaken hereunder.
* Blank space contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-
2 under the Securities Exchange Act of 1934.
ARTICLE 3.
Purchase Price and Payment Terms.
3.1 Purchase Price. The purchase price of each Aircraft is set forth
in Exhibit A attached hereto (as to each Aircraft, the "Purchase Price").
3.2 Deposits. Except as provided in Section 3.3 below, Purchaser has
made or shall hereafter make the following non-refundable deposits
(collectively, the "Deposits") to the account of Seller as and when set
forth below:
a. Purchaser has delivered to Seller the sum of [ * ] (the
"First Deposit"), receipt of which is acknowledged by Seller;
b. Upon execution of this Agreement, Purchaser shall
immediately pay to Seller the sum of [ * ] (the "Second Deposit");
c. By no later than [ * ], Purchaser shall pay to Seller the
sum of [ * ] (the "Third Deposit") (the First Deposit, Second Deposit and
Third Deposit is referred to collectively as the "Final Delivery Deposit");
d. Purchaser shall pay to Seller the sum of [ * ] (the "Fourth
Deposits"), representing [ * ] per Aircraft, which sum shall be paid as
follows: [ * ] shall be due upon execution of this Agreement, [ * ] shall
be due on or before [ * ], and the balance of [ * ] shall be due on or
before [ * ]; and
e. Purchaser shall pay to Seller the sum of [ * ] (the "Fifth
Deposits"), representing [ * ] per Aircraft, which sum shall be paid as
follows: [ * ] shall be due upon execution of this Agreement, and [ * ]
shall be due on or before the first day of the month [ * ] prior to the
relevant Aircraft's Target Month provided, however, that if any Deposit
would otherwise be due in [ * ] of any year, Purchaser shall not be
required to pay such Deposit until the fifteenth (15th) day of January.
Except as provided in Sections 9.5 and 9.6 below, the Deposits are non-
refundable and Purchaser shall have no right to return of any Deposit after
payment thereof to Seller. All interest earned on the Deposits shall be
property of the Seller. Except as provided in Sections 9.5 and 9.6 below,
under no circumstances shall Seller be required to refund or return any
Deposit to Purchaser.
3.3 Standby Letter of Credit. As an alternative to paying the
Deposits in cash as described in Sections 3.2 (b), (c), (d) or (e),
Purchaser may provide, as of the dates required for the payment of the
relevant Deposit, irrevocable standby letter(s) of credit (as to each,
including any renewals and reissuances of any such letter of credit, a
"Standby Letter of Credit"), naming Seller as beneficiary and drawable in
amounts equal to such Deposit, in form substantially as set forth in
Exhibit D hereto and otherwise acceptable to Seller, issued by first class
financial institution(s) selected by Purchaser and acceptable to Seller.
Seller agrees that first class financial institutions that at the time of
issuance and throughout the term of the Standby Letter of Credit that
maintain at least an "A" rating by Standard & Poor's shall be acceptable to
Seller. If Purchaser intends to provide a Standby Letter of Credit,
Purchaser will give Seller written notice no less than [ * ] days (or
shorter period in the case of Standby Letters of Credit to be delivered
within [ * ] days of execution of this Agreement) prior to the relevant
date of Deposit, which notice shall identify the proposed financial
institution and contain the proposed form of Standby Letter of Credit. In
no event shall Purchaser be entitled to deliver a Standby Letter of Credit
in lieu of a cash Deposit if Purchaser is then in default in the
performance of any of its obligations hereunder or under the Marubeni
Purchase Agreement. Each Standby Letter of Credit shall be drawable at any
time after issuance, and shall have an expiry date no earlier than [ * ]
months after issuance provided that any Standby Letter of Credit with
respect to delivery of a particular Aircraft shall not, in any event,
require an expiry term in excess of [ * ] days following the end of the
relevant Target Month for such Aircraft, as the same may be extended for
all periods of Excusable Delay with respect to the relevant Aircraft. Not
later than the date that is [ * ] days prior to the expiry date of each
Standby Letter of Credit, Purchaser shall (a) cause such Standby Letter of
Credit to be renewed and reissued in each case in the same amount and form
as the Standby Letter of Credit originally issued and (b) cause such
renewed and reissued Standby Letter of Credit to be delivered to Seller.
Such renewed and reissued Standby Letter of Credit shall be drawable at and
after the time of expiration of the Standby Letter of Credit it replaces
and shall have an expiry date no earlier than the date which is [ * ]
months from the expiry date of the Standby Letter of Credit it replaces.
In the event that any Standby Letter of Credit issuing bank becomes
unacceptable to Seller, or the validity or enforceability of such Standby
Letter of Credit becomes uncertain, then Purchaser shall within [ * ]
Business Days of demand therefor by Seller, against return by Seller of the
original Standby Letter of Credit, provide to Seller a cash Deposit in the
amount equal to such Standby Letter of Credit or a replacement Standby
Letter of Credit of like amount which shall be in a form, and shall be
issued by a financial institution, acceptable to Seller.
3.4 Payment for the Aircraft. At least [ * ] Business Days prior to
the relevant delivery date of each Aircraft, the parties shall establish a
document escrow (the "Document Escrow") and a funds escrow (the "Funds
Escrow") pursuant to a Document Escrow Letter and Funds Escrow Agreement
substantially in the forms of Exhibit E and Exhibit F attached hereto.
Xxxxx & Xxxxxxx (or such other FAA counsel located in Oklahoma City and
acceptable to Purchaser and Seller) (the "Document Escrow Agent") shall be
the Document Escrow Agent under the Document Escrow and one or more
financial institution(s) located in New York, New York selected by Seller
and reasonably acceptable to Purchaser (the "Funds Escrow Agent") shall be
the Funds Escrow Agent under the Funds Escrow. At least [ * ] Business Day
prior to the applicable delivery date for such Aircraft, Purchaser and
Seller, as the case may be, shall place into the Document Escrow and the
Funds Escrow, the funds and documents required to be placed into escrow by
them under the Funds Escrow Agreement and Documents Escrow Letter. The
Funds Escrow Agent shall promptly notify Seller when all funds have been
deposited into the escrow account and will disburse such funds as provided
in the Funds Escrow Agreement. Seller shall credit towards the Purchase
Price the Fourth and Fifth Deposits applicable to such Aircraft to the
extent such Deposits are made in cash and held by Seller provided that in
the case of the ninth (9th) Aircraft to be delivered hereunder, Seller
shall also credit the portion of the Final Delivery Deposit to the extent
such Deposits are made in cash and held by Seller towards the Purchase
Price of said Aircraft. All costs and fees of the escrow agents shall be
for the Purchaser's account.
3.5 Payment in U.S. Funds. All payments (including payments of the
Deposits) hereunder shall be paid in United States Dollars by telegraphic
transfer in immediately available funds to a bank account designated by
Seller. Purchaser shall comply with all applicable monetary and exchange
control regulations, and shall obtain any necessary authority from the
governmental agency administering such regulations in order to enable
Purchaser to make payments at the time and place in the manner and medium
specified herein. Purchaser shall pay all charges and expenses including
but not limited to all bank charges and assessments as well as Indemnified
Taxes and fees in relation to the payment to be made hereunder. Without
limiting the foregoing, all payments to be made to Seller hereunder shall
be made free and clear of, and without regard to, any and all Indemnified
Taxes and other setoffs, counterclaims, withholdings or other deductions of
any kind or nature whatsoever, unless Purchaser is required by law to make
any withholding for taxes, in which case Purchaser shall (a) immediately
pay to Seller such additional amount as shall be required so that Seller
shall receive, on the date such payments are due, the net amount it would
have received had such withholding for taxes not been required and
(b) promptly pay such taxes and provide to Seller evidence of such payment.
3.6 Guaranties. All obligations of Purchaser under this Agreement
shall be fully guaranteed by Airborne Freight Corporation ("Airborne")
pursuant to a guaranty substantially in the form of Exhibit G attached
hereto (the "Airborne Guaranty"). The obligations of Seller under this
Agreement shall be guaranteed by Itochu pursuant to a guaranty
substantially in the form of Exhibit H attached hereto (the "Itochu
Guaranty").
3.7 Adequate Assurances.
a. Triggering Event. For purposes of this Agreement, a
"Triggering Event" shall mean the failure of Airborne to meet either of the
following financial covenants: (i) the ratio of Consolidated Funded Debt
to Consolidated Total Capital shall at any time exceed [ * ], or (ii)
Consolidated Net Worth shall at any time be less than [ * ]. For purposes
of this Agreement: (w) "Consolidated Funded Debt" means, without
duplication, (1) all obligations of Airborne and its Consolidated
Subsidiaries for borrowed money, (2) all obligations of Airborne and its
Consolidated Subsidiaries evidenced by bonds, debentures, notes or other
similar instruments; and (3) all obligations of Airborne and its
Consolidated Subsidiaries to pay the deferred purchase price of property or
services other than trade accounts payable arising in the ordinary course
of business; (x) "Consolidated Net Worth" means the shareholders' equity of
Airborne and its Consolidated Subsidiaries as set forth or reflected on the
most recent consolidated balance sheet of Airborne and its Consolidated
Subsidiaries; (y) "Consolidated Total Capital" means, at any time, the sum
of (1) Consolidated Net Worth and (2) Consolidated Funded Debt; and
(z) "Consolidated Subsidiary" means at any date any subsidiary of Airborne
or other entity the accounts of which, in accordance with generally
accepted accounting principles consistently applied ("GAAP"), would be
consolidated with those of Airborne in its consolidated financial
statements as of such date. Purchaser shall promptly notify Seller of any
Triggering Event. Further, on a quarterly basis, Purchaser shall deliver
to Seller copies of Airborne's 10-Qs and annual reports to shareholders, as
applicable, along with an officer's certificate evidencing that as of the
date of the statements, a Triggering Event had not occurred.
b. Provision of Assurances. Upon a Triggering Event, Purchaser
shall be obligated, within [ * ] days of written notice from Seller, to
deliver to Seller either (a) (i) evidence satisfactory to Seller that
Purchaser has obtained a firm commitment from one or more financiers
selected by Purchaser and reasonably satisfactory to Seller to provide
financing for at least 80% of the Purchase Price of the Aircraft next
scheduled to be delivered to Purchaser hereunder ("Committed Financing")
which Committed Financing shall not be subject to any material condition
other than documentation and (ii) evidence reasonably satisfactory to
Seller that Purchaser is capable of providing the funds necessary to
provide any portion of the Purchase Price for the Aircraft that is not to
be provided by third-party financiers under the Committed Financing; or
(b) such other evidence reasonably satisfactory to Seller that Purchaser
has the ability to pay the Purchase Price of the next scheduled Aircraft to
be purchased hereunder. The obligation hereunder shall be a rolling
obligation and shall apply so long as such Triggering Event remains
outstanding. If Purchaser shall at any time fail to provide the assurances
required hereunder, such failure shall constitute a breach of this
Agreement.
* Blank space contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-
2 under the Securities Exchange Act of 1934.
ARTICLE 4.
Condition of Aircraft.
4.1 General Condition. At the time of its delivery to Purchaser,each
Aircraft shall (a) be in flyable condition; (b) be maintained in compliance
with ANA's maintenance and repair program as authorized by the JCAB
(hereinafter called the "ANA's Maintenance Program"); (c) be in compliance
with and have a valid airworthiness certificate issued by the JCAB; and (d)
be in compliance with all applicable outstanding mandatory Airworthiness
Directives ("A.D.'s") affecting the Aircraft as issued by the FAA which
have a compliance deadline on or prior to the date of delivery of such
Aircraft to Purchaser. The Aircraft shall not otherwise be required to
comply with Federal Aviation Regulations (including specifically, but
without limitation, to TCAS and wind shear detection).
4.2 Condition of Airframe. At the time of its delivery to Purchaser,
each Aircraft shall meet the requirements and shall have such hours and
cycles remaining under ANA's Maintenance Program, as set forth below:
(a) have accomplished immediately after removal from service and
prior to delivery the scheduled "C" check or its equivalent in accordance
with ANA's Maintenance Program;
(b) have at least [ * ] life remaining to the next complete
restoration interval for the main and the nose landing gears in accordance
with FAA's Maintenance Review Board Report ("MRBR"). Either cycles, hours
or calendar days, whichever is applicable in the MRBR on the date [ * ]
years prior to the delivery date of the relevant aircraft shall be applied
to the delivery condition for those landing gears (for example, if the
current restoration interval in the MRBR is [ * ] cycles, then at the time
of delivery to Purchaser, the landing gears shall have at least [ * ]
cycles remaining before the next complete restoration, as less than [ * ]
cycles would have been used since the last complete restoration);
(c) have at least "C" check interval remaining before the next
due corrosion prevention and control program and SSI program in accordance
with ANA's Maintenance Program; and
(d) have accomplished all outstanding deferred maintenance items
which relate to JCAB airworthiness or are required to be corrected in
accordance with ANA's Maintenance Program.
4.3 Condition of Controlled Components. At the time each Aircraft is
delivered to Purchaser, all components (other than engines but inclusive of
the APU) which are time controlled under ANA's Maintenance Program as of
the date of this Agreement shall have a minimum service life of [ * ] hours
and or [ * ] cycles and or [ * ] months remaining, whichever is applicable
under ANA's Maintenance Program provided, however, that should a component
be limited by more than one factor, all pertinent limits shall apply. The
condition described in this Section 4.3 shall not be applied to the
components required only for passenger aircraft and that not required for
cargo aircraft.
4.4 Condition of Installed Engines. At the time of its delivery to
Purchaser, each Aircraft's installed engine shall have [ * ] cycles
remaining to the next schedule engine removal and shall be serviceable as
determined by a borescope inspection and full power run-up at "on wing"
condition conducted during Purchaser's inspection under Section 7.2(d) and
performed in accordance with ANA's Maintenance Program.
4.5 Satisfaction of Condition Requirements. An Aircraft satisfying
the delivery conditions contained in this Article 4 on its respective
delivery date shall be regarded as being in "Delivery Condition."
4.6 Effect of Delivery Conditions. Upon acceptance of an Aircraft by
Purchaser hereunder, the Delivery Conditions with respect to such Aircraft
shall in all respects be deemed met and satisfied. Under no circumstances
shall Seller assume liability to Purchaser or any other person or entity
with respect to the condition of any Aircraft after the same has been
accepted by Purchaser hereunder.
* Blank space contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-
2 under the Securities Exchange Act of 1934.
ARTICLE 5.
Representations and Warranties.
5.1 Seller's Representations. Seller represents and warrants to
Purchaser as follows (which representations and warranties shall, unless
otherwise stated, be deemed made on and as of the date hereof and as of the
relevant delivery date of each Aircraft):
a. Organization and Standing. KC1, KC2, KC3 and Itochu are
each corporations duly organized, validly existing and in good standing
under the laws of Japan. Purchaser acknowledges that neither KC1, KC2 nor
KC3 shall be required to maintain its corporate existence after delivery of
all Aircraft to be delivered by such corporation hereunder provided no such
action shall relieve Itochu of its obligations under the Itochu Guaranty.
b. Corporate Power and Authority. Seller has all requisite
power and authority to execute and to deliver this Agreement and the other
documents required hereunder, and to carry out the transactions
contemplated herein and therein. Itochu has all requisite power and
authority to execute and deliver the Itochu Guaranty and to carry out the
transactions contemplated herein.
c. Due Authorization; Binding Obligation. This Agreement has
been duly authorized by Seller and is valid, binding and enforceable
against Seller in accordance with its respective terms. The Itochu
Guaranty has been duly authorized by Itochu and is valid, binding and
enforceable against Itochu in accordance with its terms.
d. Title to Aircraft. At delivery of each Aircraft in
accordance with this Agreement, and upon release by the Document Escrow
Agent of the Bills of Sale to Purchaser, Seller shall convey to Purchaser
good title to each Aircraft, free and clear of any and all mortgages,
pledges, trusts, liens (including tax liens), charges, leases or other
security interests or encumbrances of any kind whatsoever ("Liens") other
than any Liens created by Purchaser or arising as a result of any action or
inaction of Purchaser.
e. No Conflict. The execution, delivery and performance by
Seller of this Agreement and by Itochu of the Itochu Guaranty does not
contravene its articles of incorporation or bylaws and does not contravene
the provisions of or constitute a default under any agreement or instrument
to which such person is a party or by which such person or any of its
properties may be bound or affected.
5.2 Purchaser's Representations. Purchaser represents and warrants
to Seller as follows (which representations and warranties shall, unless
otherwise stated, be deemed made on and as of the date hereof and as of the
relevant delivery date of each Aircraft):
a. Organization and Standing. Each of Purchaser and Airborne
are corporations duly organized, validly existing and in good standing
under the laws of the State of Delaware.
b. Corporate Power and Authority. Purchaser has all requisite
power and authority to execute and to deliver this Agreement and the other
documents required hereunder, and to carry out the transactions
contemplated herein and therein. Airborne has all requisite power and
authority to execute and to deliver the Airborne Guaranty and to carry out
the transactions contemplated herein.
c. Due Authorization; Binding Obligation. This Agreement has
been duly authorized by Purchaser and is valid, binding and enforceable
against Purchaser in accordance with its respective terms. The Airborne
Guaranty has been duly authorized by Airborne and is valid, binding and
enforceable against Airborne in accordance with its respective terms.
d. No Conflict. The execution, delivery and performance by
Purchaser of this Agreement and by Airborne of the Airborne Guaranty does
not contravene its articles of incorporation or bylaws and does not
contravene the provisions of or constitute a default under any agreement or
instrument to which such person is a party or by which such person or any
of its properties may be bound or affected.
5.3 Disclaimer of Other Warranties or Representations.
Except for Seller's obligation with respect to title as provided in
Sections 2.4 and 5.1(d), EACH AIRCRAFT WILL BE SOLD AND DELIVERED TO
PURCHASER IN THE THEN "AS IS, AND WHERE IS" CONDITION THEREOF WITH ALL
DEFECTS AND FAULTS WHETHER LATENT OR PATENT, WHETHER KNOWN OR UNKNOWN, WITH
PURCHASER HAVING HAD FULL OPPORTUNITY AND RIGHT OF INSPECTION AND
DETERMINATION, AND SELLER MAKES NO WARRANTIES TO PURCHASER EXCEPT AS TO
TITLE, AND PURCHASER HEREBY WAIVES ALL OTHER WARRANTIES OF SELLER OR ITS
AFFILIATES OR ASSIGNS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, USE, PURPOSE, FITNESS,
AIRWORTHINESS, VALUE OF DESIGN, AND WAIVES, RELEASES AND RENOUNCES ANY
RIGHTS, CLAIMS OR REMEDIES AGAINST SELLER AND ITS AFFILIATES OR ASSIGNS
WITH RESPECT TO DIRECT DAMAGES, LOSS OF LIFE OR INJURY TO PERSONS OR
PROPERTY, LOSS OF USE OR OTHER SECONDARY OR CONSEQUENTIAL DAMAGES WHICH
WOULD OTHERWISE ARISE WITH RESPECT TO THE WARRANTIES WAIVED BY PURCHASER
UNDER THIS ARTICLE 5. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE TERM
"DIRECT DAMAGES" AS USED HEREIN INCLUDES WITHOUT LIMITATION, LOSS,
DESTRUCTION OR DAMAGE BEYOND REPAIR OF THE AIRCRAFT.
ARTICLE 6.
Covenants.
6.1 Covenants of Seller.
a. Aircraft Documentation. Concurrent with the delivery of
each Aircraft, and except as has been previously furnished to Purchaser by
XXX, Seller shall furnish to Purchaser in their "AS IS" condition the
aircraft documentation (collectively, the "Aircraft Documentation") as
described in Exhibit I hereto.
b. Cooperation in Assignment of Warranties and Contract Rights.
At Purchaser's request, Seller shall assign to Purchaser effective upon the
delivery of the relevant Aircraft, any and all of Seller's rights with
respect to any manufacturer warranties or repair or maintenance agreements
relating to such Aircraft to the extent such rights are assignable by
Seller. Further, Seller shall request that XXX, at Purchaser's request,
assign to Purchaser effective upon the delivery of the relevant Aircraft,
any and all of ANA's rights with respect to any manufacturer warranties or
repair or maintenance agreements relating to such Aircraft to the extent
such rights are assignable by XXX. Purchaser shall reimburse Seller for
all out of pocket costs, if any, incurred by Seller or XXX in connection
with this Section 6.1(b).
c. Cooperation on Export. Seller agrees to provide Purchaser
with reasonable assistance and coordination in connection with the export
of any Aircraft from Japan.
d. Cooperation. Without prejudice to Section 9.4 hereof,
Seller will use reasonable efforts to take, or cause to be taken, such
action and to execute and deliver or cause to be executed and delivered
such additional documents and instruments and to do, or cause to be done,
all such things reasonably necessary, proper or advisable under the
provisions of this Agreement and applicable law to consummate and carry out
all transactions contemplated by this Agreement.
e. Material Alteration. To the extent Seller may exercise such
rights under its lease with XXX (and except to the extent required to
permit the Aircraft to comply with applicable law, regulations, aviation
authority directives or ANA's fleet policy with respect to its entire 767
fleet), Seller agrees to direct XXX to correct prior to the relevant
delivery date of an Aircraft all material alterations to such Aircraft that
have not been approved by Purchaser.
6.2 Covenants of Purchaser.
a. Insurance. From and after delivery of each Aircraft to
Purchaser and with respect to each delivered Aircraft for a period of at
least [ * ], Purchaser shall, at its own cost and expense, maintain
insurance for such Aircraft as set forth below in such form and with such
insurers as may be selected by Purchaser and be reasonably acceptable to
Seller:
(1) Liability Insurance Policies.
Aviation Liability Insurance Policies, Including
"Passenger legal liability" (if applicable), "Third Party legal liability,"
"Aviation Products, Residual or Completed Operations Legal Liability,"
"Freight Legal Liability," which shall include the following endorsements,
amendments or extensions of coverage:
(a) Seller, XXX, Itochu, and each of their respective
subcontractors, parents, affiliates and successors and their respective
officers, directors, agents, assignees, servants and employees
(collectively, the "Seller Insureds") shall be named as additional insureds
under the above mentioned aviation liability policies to the extent
required by this Agreement, which policies shall have limits reasonably
satisfactory to Seller. Without limitation, the third party legal
liability policy shall have limits of not less than United States Dollars
[ * ].
(b) The Seller Insureds shall be named as additional
insureds with both way cross liability clause.
(2) Hull Insurance Policies.
Hull Insurance Policies (including "War Risk" in the
event such Aircraft may be operated outside of the United States) shall
cover for an amount at least equal to the full Purchase Price for each
Aircraft and shall include a subrogation waiver clause in favor of the
Seller Insureds and its insurers in form reasonably acceptable to Seller.
(3) General Requirements.
Purchaser further agrees that insurance polices
required in this Section 6.2(a) shall contain the following endorsements,
amendments or extensions or coverage:
(a) Insurers shall provide, with respect to the above
mentioned, 30 days written notice to Seller prior to the effective date
of cancellation or termination whether or not such cancellation or
termination is instituted by the insurers or Purchaser.
(b) It is understood and agreed that the insurance
afforded by the above mentioned policies shall not be invalidated or
impaired as regards the interest of any Seller Insured by any action or
inaction of Purchaser, Airborne or any other person including illegal use
of any Aircraft or arising from any violation or breach of any
representation, warranty, declaration or condition.
(c) Insurers agree that the Seller Insureds shall not
be liable for any insurance premiums of Purchaser arising out of or
resulting from this Agreement. Insurers further agree that there will be
no set off against any claims that may be payable to the Seller Insureds.
(d) The above mentioned liability policies shall be
primary and contributory and not excess with respect to any other insurance
which may be available for the protection to the Seller Insureds.
(e) All of the provisions of the above mentioned
policies, except the limits of liability, shall operate in the same manner
as if there were in respect of each Aircraft a separate policy covering
each Seller Insured.
(f) The above mentioned policies shall apply worldwide
and have no territorial limits (except, that War Risk shall apply only
outside of the United States and Allied Risk, which shall apply to the
fullest extent available in the international insurance market and in any
case shall apply in each jurisdiction from, over and to which any Aircraft
shall operate).
(4) [ * ] days prior to the delivery date of each Aircraft,
Purchaser agrees to provide "Insurance Certificates" which certify that all
insurance policies as required under this Section 6.2(a) are in effect with
respect to such Aircraft.
b. Indemnification. From and after delivery and transfer of
title of each Aircraft to Purchaser, Purchaser shall defend, indemnify and
hold Seller, XXX, Itochu, and their respective affiliates, parents,
successors and assigns, and each of their officers, directors,
shareholders, employees, and agent and assigns (as to each, an
"Indemnitee") harmless from and against all loss, damage, liability, fees
(including attorney's fees), cost, expense, demand, claim, suit, settlement
or judgement whether by Purchaser, or any third party or parties, including
any Indemnitees, and whether for death or injury to any person or persons
whomsoever or for the loss of, damage to or destruction of any property
whatsoever, including but not limited to any Aircraft or any property of
Purchaser, that shall be suffered or incurred by or asserted against or
imposed on any such Indemnitee arising out of or in any way connected with
the Aircraft or any engine or any part or document sold and transferred to
Purchaser hereunder, including, without limitation, in connection with the
ownership, maintenance, repair, overhaul, modification, storage, control,
operation or use of the Aircraft by Seller, XXX, Itochu, any other
Indemnitee, Purchaser or any third party, whether or not arising in tort or
occasioned in whole or part by the fault or negligence of an Indemnitee
except to the extent caused by the wilful misconduct or gross negligence of
such Indemnitee (the "Exception") and provided that such Exception shall
not affect Purchaser's indemnification obligations with respect to any
other Indemnitee.
c. Cooperation. Purchaser shall use its reasonable efforts to
take, or cause to be taken, such action and to execute and deliver or cause
to be executed and delivered such additional documents and instruments and
to do, or cause to be done, all things reasonably necessary, proper or
advisable under the provisions of this Agreement and applicable law to
consummate and carry out all transactions contemplated by this Agreement.
* Blank space contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-
2 under the Securities Exchange Act of 1934.
ARTICLE 7.
Conditions to Purchaser's Obligation to Purchase.
7.1 General Conditions Precedent to Obligations of Purchaser. The
obligations of Purchaser to purchase any Aircraft is subject to the
following conditions having been met or satisfied, except as provided
below, on or prior to December 27, 1995:
a. Execution of Agreement. Seller shall have executed and
delivered to Purchaser this Agreement.
b. Marubeni Purchase Agreement. Marubeni shall have executed
and delivered to Purchaser the Marubeni Purchase Agreement.
c. Itochu Guaranty. Itochu shall have executed and delivered
to Purchaser the Itochu Guaranty.
d. Opinion. Seller shall have delivered to Purchaser an
opinion of counsel to Seller confirming the due authorization and execution
of this Agreement by Seller and of the Itochu Guaranty by Itochu provided
that Seller shall have until February 10, 1996 to deliver said opinion.
7.2 Specific Conditions Precedent to Obligations of Purchaser. The
obligations of Purchaser to purchase a particular Aircraft is subject to
the following conditions having been substantially met or satisfied in all
material respects on or prior to delivery to Purchaser of said Aircraft (or
such other date as provided herein):
a. Accuracy of Representations and Warranties. The
representations and warranties of Seller set forth in this Agreement with
respect to said Aircraft shall be true in all material respects as though
made on and as of the relevant delivery date.
b. Taking or Total Loss. As of the relevant delivery date of
the Aircraft, the Aircraft shall not then be subject to an event of Taking
or Total Loss. "Taking" means, with respect to an Aircraft, the
requisition of title, confiscation or forfeiture; or requisition for use by
or for any governmental or quasi-governmental entity or authority or the
theft of the Aircraft. "Total Loss" means an actual, constructive,
compromised, arranged or agreed total loss of the Aircraft or any damage to
the Aircraft that would cost in excess of [ * ] of the relevant Purchase
Price of such Aircraft to correct.
c. Aircraft Condition. The relevant Aircraft shall have been
tendered in Delivery Condition.
d. Inspection. Purchaser, and except as provided below, at its
sole cost and expense, may inspect the relevant Aircraft as provided below:
1. Ground Inspection. The Aircraft including the Aircraft
Documentation shall be made available to Purchaser for ground inspection by
Purchaser at an XXX facility in Japan or at an Other Location acceptable to
the parties. Such inspection shall take place in connection with the "C"
check Delivery Condition as described in Section 4.2(a) above and shall
occur approximately seven (7) working days immediately prior to the date of
delivery of such Aircraft to Purchaser or such other date mutually agreed
upon by Seller, Purchaser and XXX provided that the ground inspection by
Purchaser shall not interfere with the implementation and performance of
ANA's maintenance work. Seller will provide Purchaser with at least [ * ]
days notice prior to commencing the final "C" check with respect to the
Aircraft. Seller shall direct XXX to open the areas of the Aircraft to
perform the necessary checks to verify compliance with the Delivery
Conditions set forth in Article 4 to the extent within the scope of the
"C" check in order to determine that the Aircraft including the Aircraft
Documentation is in Delivery Condition provided that the ground inspection
by Purchaser shall not interfere with ANA's performance of its maintenance
operations. The ground check which is required in the scheduled "C" check
before delivery shall include but not be limited to: (a) an oil and fuel
filter inspection on all engines, accessory gearboxes and engine accessory
filters; and (b) detailed internal and external inspections of the main
gear fittings, the bulkheads, belly skins and other areas Purchaser
reasonably requests during the "C" check required herein. Seller shall
direct XXX promptly to correct any bona fide material discrepancies from
the conditions required under Article 4 which are observed during such
inspection and are communicated in writing by Purchaser to XXX and Seller
prior to completion of such "C" check provided that such discrepancies are
with respect to items of the type described in Section 4.2(d) hereof.
Purchaser may re-inspect the relevant area of the Aircraft to insure
compliance with this Agreement after XXX performs the corrective repairs.
2. Operational Test Flight. After completion of any
corrections required under Section 7.2(d)(1), Seller shall direct XXX to
test fly such Aircraft, using qualified flight test personnel, for not more
than one (1) hour in the vicinity of an XXX facility in Japan (or at an
Other Location acceptable to the parties), for the purpose of demonstrating
to Purchaser the satisfactory operation of such Aircraft and its equipment.
During such test flight command, care, custody, and control of the Aircraft
shall remain at all times with XXX. Three (3) of Purchaser's employees may
participate in such flight as observers. Said flight shall be flown using
ANA's standard operational test flight procedures. Upon completion of such
operational flight testing, Seller shall direct XXX promptly to correct any
bona fide material discrepancies from the conditions required by Article 4
which are observed during such flight and are communicated in writing to
Seller and XXX provided that such discrepancies are with respect to items
of the type described in Section 4.2(d) hereof. The period of such
correction shall constitute Excusable Delay. If ANA's Maintenance Program
requires XXX to test fly such Aircraft after such corrections, Seller shall
direct XXX to conduct such a test flight.
3. Purchaser's Correction. Any discrepancies referred to
in Sections 7.2(d)(1) or d(2) above which were not corrected prior to
delivery of the Aircraft to Purchaser, may be corrected, after notice to
and agreement by Seller, by Purchaser or its designee, and Seller shall
reimburse Purchaser, at Purchaser's or its designee's normal charges (and
without markup). Payment of the correction of such discrepancies shall be
made by Seller within [ * ] days of Seller's receipt of Purchaser's invoice
and reasonably acceptable supporting evidence covering the discrepancies
corrected, with a breakdown of the costs of correction. If Seller disputes
the charges, Seller and Purchaser shall consult in good faith in an effort
to agree as to the propriety of the cost and work done, failing which the
matter shall be resolved by an appropriate third party mutually acceptable
to the parties (such as the Boeing Company). Seller shall have the right,
upon prior notice to Purchaser, to send, at Seller's expense, a
representative to review the work.
4. Purchaser's Acceptance. Upon satisfactory completion
of the ground inspection and operational test flight(s) in accordance with
Section 7.2(d) herein, Purchaser shall forthwith give to Seller the
Acceptance Certificate. Delivery of the Acceptance Certificate shall
constitute irrevocable agreement that the relevant Aircraft is in Delivery
Condition except with respect to the items to be corrected as provided
under Section 7.2(d)(3).
5. Costs. The flight tests pursuant to Section 7.2(d)
(including any subsequent flight tests) shall be performed at Seller's
expense, including for the costs for fuel, oil, airport fees, insurance,
takeoff/landing fees, ground handling charges and airways communication
charges. Purchaser shall be responsible for its costs incurred with
respect to Purchaser's (or its agent's) personnel (such as travel expenses,
food, hotel, etc.) in connection with the ground inspection and flight
tests.
6. Effect of Discrepancies. Regardless of any
discrepancies noticed or not noticed by Purchaser or required or not
required by Purchaser to be corrected, Purchaser acknowledges that after
delivery of the Aircraft to Purchaser, the Aircraft shall be subject,
without limitation, to acceptance under Section 4.6, the disclaimers of
Section 5.3 and the indemnification obligations of Section 6.2(b) and,
except as provided in said sections, the sole remaining consequence of
Section 7.2(d) with respect to said Aircraft shall be the obligation of
Seller to provide certain reimbursement payments as provided in
Section 7.2(d)(3).
e. De-registration. After receipt of notice from the Funds
Escrow Agent that the full Purchase Price (other than the relevant cash
Deposits) is in escrow under the Funds Escrow Agreement and after
confirmation from the Document Escrow Agent that the documents to be
delivered by each party pursuant to the Document Escrow Letter have been
delivered into escrow, and subject to notice having been delivered by
Purchaser that the FAA is prepared to permit the registration of the
Aircraft, Seller and XXX shall promptly take such steps as may be necessary
to permit the de-registration of the relevant Aircraft from Japanese
registration.
f. Escrow Agreements. (1) Seller and the Funds Escrow Agent
shall have duly executed and delivered to Purchaser the Funds Escrow
Agreement; (2) Seller and the Documents Escrow Agent shall have duly
executed and delivered to Purchaser the Documents Escrow Letter; and
(3) Seller shall have delivered to the Documents Escrow Agent all documents
to be delivered by Seller as provided under the Documents Escrow Letter.
7.3 Effect of Failure of Conditions. If a condition in Section 7.1
shall not have been met or waived by Purchaser, this Agreement shall
terminate as provided under Section 9.1(b) and shall be subject to Section
9.5. If a material condition in Section 7.2 shall have not been
substantially met or waived by Purchaser for reasons other than the acts or
omissions of Purchaser or the occurrence of any Excusable Delay, Purchaser
shall have the right under Section 9.1(b) to terminate its obligation to
purchase the particular Aircraft (and the relevant Deposits shall be
returned to Purchaser as provided under Section 9.5), but Purchaser shall,
subject to the terms of this Agreement, remain obligated to purchase, and
Seller shall remain obligated to sell, all remaining Aircraft.
* Blank space contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-
2 under the Securities Exchange Act of 1934.
ARTICLE 8.
Conditions to Seller's Obligation to Sell.
8.1 General Conditions Precedent to Obligations of Seller. The
obligations of Seller to sell any Aircraft is subject to the following
conditions having been met or satisfied on or prior to December 27, 1995:
a. Execution of Agreement. Purchaser shall have executed and
delivered to Seller the Agreement.
b. Guaranty. Airborne shall have executed and delivered to
Seller the Airborne Guaranty.
c. Deposits. Purchaser shall have made all of the Deposits to
be made as of execution of this Agreement.
d. Opinion. Purchaser shall have delivered to Seller an
opinion of counsel to Purchaser confirming the due authorization and
execution of this Agreement by Purchaser and of the Airborne Guaranty by
Airborne.
e. Marubeni Purchase Agreement. Marubeni shall have executed
and delivered to Purchaser the Marubeni Purchase Agreement.
8.2 Specific Conditions Precedent to Obligations of Seller. The
obligations of Seller to sell any specific Aircraft is subject to the
following conditions having been substantially met or satisfied in all
material respects on or prior to delivery to Purchaser of such Aircraft (or
such other date as provided herein) provided that Seller shall have the
right to require strict compliance with any matter with respect to the
Deposits, the Standby Letters of Credit, or the payment of the Purchase
Price for any Aircraft:
a. Accuracy of Representations and Warranties. The
representations and warranties of Purchaser set forth in this Agreement
shall be true in all material respects as though made on and as of the
delivery date.
b. Taking or Total Loss. As of the relevant delivery date of
the Aircraft, the Aircraft shall not then be subject to an event of Taking
or Total Loss.
c. Excusable Delay. No event of Excusable Delay shall preclude
Seller from performing its obligations hereunder.
d. Deposits. All Deposits required under Section 3.2 have been
made as and when due.
e. Escrow Agreements. (1) Purchaser and the Funds Escrow Agent
shall have duly executed and delivered to Seller the Funds Escrow
Agreement; (2) Purchaser and the Documents Escrow Agent shall have duly
executed and delivered to Seller the Documents Escrow Letter; and
(3) Purchaser shall have delivered to the Funds Escrow Agent and Documents
Escrow Agent all funds and documents to be delivered by Purchaser under the
Funds Escrow Agreement and Document Escrow Letter including, without
limitation, the Purchase Price for such Aircraft as and when due.
ARTICLE 9.
Termination.
9.1 Termination by Purchaser. This Agreement may be terminated and
abandoned by Purchaser solely as follows:
a. Event of Termination. With respect to the Agreement as a
whole, upon an Event of Termination by Seller or Itochu.
b. Non-Fulfillment of Conditions. With respect to a particular
Aircraft, but no others, and except to the extent subject to an Excusable
Delay, if any condition to Purchaser's obligation to purchase said Aircraft
in Section 7.2 hereof has not been substantially and materially satisfied,
unless waived by Purchaser or extended by agreement of the parties or
caused by the acts or omissions of Purchaser.
c. Termination for Delay. With respect to a particular
Aircraft, but no others, due to delay as provided in Section 9.4(b) below.
d. Breach of Undertakings. Except to the extent excused or
delayed under Section 9.4 hereof, with respect to a particular Aircraft,
Seller shall materially and substantially fail to perform or maintain any
of its obligations hereunder and such failure is not cured within [ * ]
Business Days of written notice to Seller.
e. Total Loss or Taking. With respect to a particular
Aircraft, but no others, and subject to Section 9.4 (including extensions
of time to cure) due to a Total Loss or Taking of the Aircraft.
Notwithstanding the above, Seller shall have the right, but not the
obligation, to deliver a Substitute Aircraft (being a comparable Model B-
767 aircraft that meets the requirements of this Agreement and may include,
without limitation, acceleration of delivery of other Aircraft to be
delivered hereunder).
f. Excusable Delay. With respect to a particular Aircraft, but
no others, due to Excusable Delay as provided and subject to
Section 9.4(b).
9.2 Termination by Seller. This Agreement may be terminated and
abandoned by Seller solely as follows:
a. Event of Termination. With respect to the Agreement as a
whole, upon an Event of Termination by Purchaser or Airborne.
b. Non-Fulfillment of Conditions. With respect to a particular
Aircraft, but no others, if any condition to Seller's obligation to sell
said Aircraft in Section 8.2 hereof has not been materially and
substantially satisfied by the applicable delivery date, unless waived by
Seller or extended by agreement of the parties provided that nothing herein
shall limit Seller's right to terminate as provided under Section 9.2(e)
below.
c. Total Loss or Taking. With respect to a particular
Aircraft, but no others, and subject to Section 9.4 (including extensions
of time to cure) due to a Total Loss or Taking of the Aircraft.
d. Excusable Delay. With respect to a particular Aircraft, but
no others, due to Excusable Delay as provided and subject to Section 9.4.
e. Breach of Undertakings. With respect to a particular
Aircraft or, at Seller's election, this Agreement as a whole, upon the
occurrence of any of the following:
1. Purchaser shall fail to perform or maintain any of its
obligations under Sections 3.2, 3.3, 3.4, 3.7 or 6.2(a) hereof;
2. Purchaser shall fail to materially and substantially
perform any of its other obligations hereunder and such failure is not
cured within [ * ] Business Days of written notice to Purchaser;
3. Purchaser shall fail to take delivery of any Aircraft
tendered for delivery in Delivery Condition; or
4. Purchaser shall default under its obligations under the
Marubeni Purchase Agreement.
9.3 Event of Termination. For purposes of this Agreement, an "Event
of Termination" shall mean with respect to Itochu (except with respect to
subclause (c) below, which shall not apply to Itochu), Seller, Purchaser or
Airborne, as the case may be:
a. Voluntary Bankruptcy; Insolvency. Such person shall
(i) suspend or discontinue its business, or (ii) make an assignment for the
benefit of creditors, or (iii) generally not be paying its debts as such
debts become due, or (iv) admit in writing its inability to pay its debts
as they become due, or (v) file a voluntary petition in bankruptcy, or
(vi) become insolvent (however such insolvency shall be evidenced), or
(vii) file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment of debt, liquidation or dissolution
or similar relief under any present or future statute, law or regulation of
any jurisdiction, or (viii) petition or apply to any tribunal for any
receiver, custodian or any trustee for any substantial part of its
property, or (ix) be the subject of any such proceeding filed against it
which remains undismissed for a period of sixty (60) days, or (x) file any
answer admitting or not contesting the material allegations of any such
petition filed against it, or of any order, judgment or decree approving
such petition in any such proceeding, or (xi) seek, approve, consent to, or
acquiesce in any such proceeding, or in the appointment of any trustee,
receiver, custodian, liquidator, or fiscal agent for it, or any substantial
part of its property, or an order is entered appointing any such trustee,
receiver, custodian, liquidator or fiscal agent and such order remains in
effect for sixty (60) days, or (xii) take any formal action for the purpose
of effecting any of the foregoing or seeking the its liquidation or
dissolution;
b. Involuntary Bankruptcy. An order for relief is entered
under the applicable bankruptcy laws or any other decree or order is
entered by a court having jurisdiction in the premises and such decree or
order continues undismissed and in effect for a period of sixty (60) days
(i) adjudging the person bankrupt or insolvent, or (ii) approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the person under applicable bankruptcy
or similar laws, or (iii) appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of the person
or of any substantial part of the property of any thereof, or (iv) ordering
the winding up or liquidation of the affairs of the person;
c. Cross Default. With respect to any indebtedness of such
person for borrowed money in a principal amount which exceeds [ * ] (or its
equivalent) or which, when combined with all other such indebtedness,
exceeds [ * ] (or its equivalent), (i) such person shall fail to pay when
due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) any such indebtedness or any interest or premium
thereon and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such
indebtedness (except such indebtedness as may be subject to a good faith
dispute), or (ii) such person shall fail to perform any term or covenant on
its part to be performed under any agreement or instrument relating to any
such indebtedness and required to be performed and such failure shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such failure to perform is to
accelerate or to permit the acceleration of the maturity of such
indebtedness (except such indebtedness as may be subject to a good faith
dispute), or (iii) any such indebtedness shall be declared to be due and
payable or required to be prepaid (other than by regularly scheduled
required prepayment) prior to the stated maturity thereof (except such
indebtedness as may be subject to a good faith dispute) provided that with
respect to any period of good faith dispute by a party, such party shall
take all steps as may be reasonable to resolve such dispute and, in any
event, with respect to matters described in subclause (iii) hereof, such
default is fully cured within [ * ] days after declaration that such
indebtedness is due and payable or required to be prepaid prior to the
stated maturity thereof.
9.4 Excusable Delay.
a. General. Seller shall not be responsible or be liable for
any damages (upon termination by Purchaser or otherwise) or deemed to be in
default on account of, inability to or delays in the delivery of any
Aircraft or any Aircraft Documentation or the failure of any other act to
be performed by Seller hereunder due to any of the following causes: acts
of God, war, warlike operations, insurrections or riots, fires, floods or
explosions, earthquakes or serious accidents, epidemics or quarantine
restrictions, any acts of government or governmental priorities, strikes or
labor troubles causing cessation, slow-down or interruption of work,
failure of or delay in transportation, or inability, after due and timely
diligence, to procure materials, accessories, equipment or parts, Damage,
or arising out of any other cause to the extent it is beyond Seller's
reasonable control and not occasioned by Seller's fault or negligence (any
such event being, an "Excusable Delay"). Without limitation, the failure
of XXX to perform any of its obligations under the relevant lease between
Seller and XXX or due to any other action or inaction of XXX, shall
constitute an Excusable Delay. In the event of any Excusable Delays,
Seller shall advise Purchaser concerning the nature and approximate extent
thereof and shall thereafter from time to time advise Purchaser concerning
the current status of such delays. Seller further agrees to use reasonable
efforts to cause XXX to remedy such Excusable Delay, to the extent Seller
may require XXX to remedy such event under the relevant lease with XXX.
b. Excusable Delay - Termination. During the period of
Excusable Delay which affects the delivery of an Aircraft, the time for
delivery of such affected Aircraft shall be extended. In the event
delivery of any Aircraft shall be delayed due to any one or more Excusable
Delays for a period of more than [ * ] calander days after the end of the
relevant Target Month in which such delivery is otherwise required
hereunder (the "Initial Period"), and if it is reasonable to believe that
the relevant events of Excusable Delay will be rectified, Purchaser shall
have the right, up to two times, to extend the obligations of Purchaser and
Seller hereunder with respect to such Aircraft, by delivering written
notice (the "Extension Notice") to Seller no later than [ * ] days prior to
expiration of the Initial Period or the expiration of the first Extension
Period, as the case may be. The period of extension (the "Extension
Periods") shall not be longer than the time reasonably calculated as
necessary for the relevant event of Excusable Delay to be corrected
provided that the first Extension Period shall not, in any event, exceed [
* ] calendar days and the second Extension Period shall not, in any event,
exceed [ * ] calander days. In addition, Purchaser shall have no right to
request a second Extension Period if Seller in good faith reasonably
believes the matter will likely not be rectified within such second
Extension Period. If the Aircraft shall not be delivered to Purchaser
within the Initial Period or Extension Periods, as the case may be, then
the rights and obligations of the parties hereunder with respect to that
Aircraft, but not others, shall terminate and Seller shall, within [ * ]
days from such termination, return to Purchaser the Deposits and Standby
Letters of Credit therefore received from Purchaser under Section 3.2
hereof with respect to that Aircraft (but in any event shall not return the
Final Delivery Deposit, or Standby Letters of Credit applicable thereto,
except if such event of Excusable Delay shall relate to the final Aircraft
to be delivered hereunder).
c. Excusable Delay - Damage. For purposes of this Agreement,
"Damage" means: (i) material damage to the Aircraft which affects the
ability of the Aircraft to satisfy the Delivery Condition of Article 4
hereof; (ii) which has not been corrected as of the date of the "C" check
to be performed under Section 7.2(d) hereof; and (iii) which has been
determined by ANA's insurers (or such other third party as may be
acceptable to Seller, Purchaser and XXX) not to give rise to Total Loss of
the Aircraft. The parties acknowledge that Damage is an event of
Excusable Delay. Without limiting any other provision hereunder, Seller
agrees to give prompt notice to Purchaser of any event of Damage and
further agrees to use all reasonable efforts to cause XXX to repair the
Aircraft in a timely and efficient manner.
9.5 Effect of Termination by Purchaser. If Purchaser shall have
properly terminated this Agreement in whole pursuant to Section 9.1(a),
then all remaining Deposits (except with respect to Aircraft that have been
delivered prior to the date of termination) and Standby Letters of Credit
shall be returned to Purchaser and Purchaser may pursue any remedies it may
have under applicable law. If Purchaser shall have properly terminated
this Agreement with respect to a particular Aircraft, then the relevant
Deposits and relevant Standby Letters of Credit made with respect to said
Aircraft (other than any of the Final Delivery Deposit and/or relevant
Standby Letters of Credit with respect thereto unless said termination is
with respect to the ninth (9th) Aircraft) shall be returned to Purchaser.
Further, if termination with respect to an Aircraft resulted from events or
actions within the reasonable control of Seller and were not excused by
Excusable Delay, Purchaser may pursue any remedies it may have under
applicable law with respect to said Aircraft, but Purchaser shall remain
obligated to purchase and Seller shall remain obligated to sell all
remaining Aircraft in accordance with the terms of this Agreement. In no
event shall Seller be liable to Purchaser for consequential or punitive
damages, each of which is hereby expressly waived. The parties
acknowledge, however, that Purchaser shall be entitled to a remedy of
specific performance with respect to such matters within the reasonable
control of Seller and not excused by Excusable Delay.
9.6 Effect of Termination by Seller. If Seller shall properly
terminate this Agreement in whole, then Seller shall be entitled to retain
as liquidated damages the amount of all Deposits paid or which should have
been paid by Purchaser as of the date of termination. Without limitation,
Seller shall be entitled to make immediate demand under any Standby Letter
of Credit, and the financial institutions shall make payment thereunder
without regard to whether there is a dispute between Seller and Purchaser
concerning the propriety of demand thereunder. The parties hereby
acknowledge that it would be difficult, if not impossible, to assess the
damages which would be suffered by Seller as a result of termination of
this Agreement, and therefore agree that in the event of any such failure
or refusal by Purchaser, Seller shall be entitled to the Deposits as
liquidated damages, which is not intended as a penalty but is a reasonable
estimate of Seller's actual damages under those circumstances. If Seller
shall have properly terminated this Agreement with respect to a particular
Aircraft, Seller shall remain obligated to sell and Purchaser shall remain
obligated to purchase all remaining Aircraft in accordance with the terms
of this Agreement. Further, unless termination with respect to a
particular Aircraft shall be effected by Seller under Section 9.4(b)
hereof, Seller may retain all Deposits with respect to such Aircraft (and
draw under the relevant Standby Letters of Credit) as full compensation as
its sole remedy for the damages caused hereunder. Purchaser waives any
right to challenge Seller's right to collect liquidated damages. In the
event of such challenge, however, Purchaser acknowledges and agrees that
such amounts constitute, among other things, a reasonable fee to Seller
for committing to sell the Aircraft to Purchaser in accordance with this
Agreement and deferring marketing efforts for the Aircraft.
9.7 Marketing of Aircraft. If the Agreement is terminated in whole
or with respect to a particular Aircraft, whether by Seller, Purchaser or
both, and regardless of fault and notwithstanding any right or remedy
either party may have arising therefrom, Seller shall be free of any
further obligation to sell all remaining Aircraft (in the case of
termination of this Agreement in whole) or such Aircraft (in the case of
termination with respect to a particular Aircraft) to Purchaser hereunder.
Without limitation, Purchaser shall have no further right to or interest in
said Aircraft and Seller may market or otherwise dispose of said Aircraft
without interference or objection by Purchaser.
* Blank space contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-
2 under the Securities Exchange Act of 1934.
ARTICLE 10.
Miscellaneous.
10.1 Costs and Fees. Except as otherwise expressly provided in this
Agreement, Purchaser and Seller shall each pay its own fees and expenses
incident to the negotiation, preparation and execution of this Agreement
and the obtaining of necessary approvals thereof.
10.2 Indemnity Against Brokers and Finders. Each party hereto shall
indemnify and hold the other party harmless against any claim for broker's
and finder's fees based on alleged retention of a broker/finder by the
indemnifying party.
10.3 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Washington,
exclusive of choice of law rules.
10.4 Consent to Jurisdiction, Waiver of Immunities. Each party hereto
irrevocably submits to the jurisdiction of any State or federal court
sitting in Seattle, King County, Washington, in any action or proceeding
brought to enforce or otherwise arising out of or relating to this
Agreement and irrevocably waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of venue in any
such action or proceeding in any such forum, and hereby further irrevocably
waives any claim that any such forum is an inconvenient forum. Each party
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other manner provided by law. Nothing herein shall
impair the right of one party to bring any action or proceeding against
another or its property in the courts of any other jurisdiction and each
party irrevocably submits to the nonexclusive jurisdiction of the
appropriate courts sitting in any place where property of such party is
located.
10.5 Inspections. In addition to Purchaser's inspection rights under
Section 7.2(d) hereof, Seller shall use its reasonable efforts to permit
Purchaser, upon reasonable notice and at reasonable times and at its own
expense, to inspect the Aircraft and Aircraft Documentation provided that
such inspections shall not interfere with ANA's usual operations.
10.6 Notices. All notices, requests, demands and other communication
required or permitted to be given by any party hereunder ("Notices") shall
be in writing and shall be sufficiently given if delivered personally or by
a reputable over-night delivery service or by telex or telecopier or
similar facsimile transmission or if sent by registered or certified mail,
postage prepaid, to the following address:
Seller: KC-ONE, INC.
KC-TWO, INC.
KC-THREE, INC.
c/o ITOCHU AirLease Corporation
NXB Xxxxxx Xxxxxxxx, 0X
00-00, Xxxxxx-Xxxxx 2-chome
Minato-ku, Tokyo 000
Xxxxx
Attention: Manager
Facsimile: 011-813-3497-8145
Telex: 2423154 TKAFC J
With a copy to: Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telefax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Purchaser: ABX AIR, INC.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
X.X.X.
Attention: President
Facsimile: 000-000-0000
Telex: 214317AIRBN-EXP-WIMI
With a copy to: AIRBORNE FREIGHT CORPORATION
Corporate Secretary/Counsel
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
X.X.X.
Telefax No.: (000) 000-0000
Notice shall be deemed given, made or received when received. Any
party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section for the giving of notice.
10.7 Entire Agreement. This Agreement, along with all exhibits and
schedules hereto, contains the entire understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein
contained, including, without limitation, the term sheet dated October 26,
1995. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
10.8 Assignment. This Agreement shall inure to the benefit of and be
binding upon each of the parties hereto and their respective successors and
assigns, but neither the rights nor the duties of either party under this
Agreement may be voluntarily assigned (including, without limitation, by
merger, consolidation, or reorganization), in whole or part, by either
party without the prior written consent of the other party (which consent
may be withheld in such party's sole discretion) provided that: (a) neither
party may withhold consent unreasonably in connection with an assignment by
merger, consolidation or reorganization or voluntary sale of all or
substantially all of such party's assets; and (b) Seller may assign or
novate all or any part of its rights and obligations under this Agreement,
including its title to or any interest in any Aircraft or other items to be
delivered hereunder and its right to receive moneys hereunder, in favor of
or to an affiliate or to a wholly-owned subsidiary of Itochu, and such
assignee shall have the rights and obligations of Seller hereunder provided
that absent the consent of Purchaser after good faith consultations with
Seller, Seller may not assign to an affiliate or subsidiary organized under
the laws of a country other than Japan or the United Kingdom if such
assignment would, at that time, subject Purchaser to materially increased
indemnity obligations under Section 2.6 hereof than would have been the
case if the assignee's home jurisdiction were that of Japan or the United
Kingdom.
10.9 Time. Time is of the essence with respect to the performance by
either party of their obligations hereunder. Further, for purposes of this
Agreement, all references to time and dates shall be to Pacific Standard
Time.
10.10 Paragraph Headings. Paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not
effect its interpretation.
10.11 Severability. Should any one or more of the provisions of this
Agreement be determined to be invalid, unlawful or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby.
10.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original; but such
counterparts shall together constitute but one and the same instrument.
10.13 Attorneys' Fees. In any action or proceeding brought by any
party against the other arising under or in connection with this Agreement
or any other documents related hereto, the prevailing party shall, in
addition to other allowable costs, be entitled to an award of reasonable
attorneys' fees.
10.14 Disclosure of Terms. Seller and Purchaser agree that they will
not disclose to any third party except XXX the terms of this Agreement
except (i) to such party's professional advisors; (ii) as required by
applicable law or governmental regulation, or (iii) with the prior written
consent of Seller or Purchaser.
EXECUTED in duplicate as of the day and year first above written.
PURCHASER: ABX AIR, INC.
By /s/ Xxxx Xxxxxxx
---------------------------
Its President
---------------------
SELLER: KC-ONE, INC.
By /s/ Xxxxxxxxx Xxxxxxx
---------------------------
Its Director
---------------------
KC-TWO, INC.
By /s/ Xxxxxxxx Xxxxx
---------------------------
Its Director
--------------------
KC-THREE, INC.
By /s/ Toahiyuki Nagamatau
---------------------------
Its Director
---------------------
EXHIBIT A
USED AIRCRAFT IDENTIFICATION
Aircraft
Registration Serial
Owner Number No. Target Month Purchase Price
----- -------- ----- ------------ --------------
KC1 JA8479 22785 April, 1997 USD [ * ]
KC1 JA8480 22786 June, 1997 USD [ * ]
KC2 JA8481 22787 January, 1998 USD [ * ]
KC2 JA8484 22790 October, 1998 USD [ * ]
KC3 JA8485 23016 March, 1999 USD [ * ]
KC3 JA8486 23017 May, 1999 USD [ * ]
KC3 JA8487 23018 September, 1999 USD [ * ]
KC3 JA8489 23020 April, 2000 USD [ * ]
KC3 JA8490 23021 August, 2000 USD [ * ]
AIRCRAFT CONFIGURATION DESCRIPTION
The Aircraft shall be delivered to Purchaser in the configuration
defined by Boeing detail Specification D6T103001NH, dated March 1, 1979 as
applicable (Detail Specification), as amended and supplemented and as the
Aircraft has been modified from the date of its delivery as new by Boeing
to XXX to the date of delivery to Purchaser. Certain aspects of the
current specifications of the Aircraft are described in Schedule 1 attached
hereto.
* Blank space contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-
2 under the Securities Exchange Act of 1934.
EXHIBIT B
XXXX OF SALE
[KC-ONE, INC.] ("Seller"), a Japanese corporation, in consideration of
One Dollar and other good and valuable considerations, receipt of which is
hereby acknowledged, does hereby grant, bargain, sell and assign to ABX
AIR, INC. ("Purchaser"), a Delaware corporation, the following described
property (including all appliances, parts, instruments, appurtenances,
accessories, furnishings, or other equipment or property installed on or
attached to said aircraft and engines):
Aircraft Aircraft
Manu- Aircraft Manu- Engine Engine
facturer's Registration facturer's Manufacturer's Manufacturer's
Model No. Markings Serial No. Model No. Serial Nos.
--------- --------- --------- --------- ---------
(1)
(2)
TO HAVE AND TO HOLD said property to the Purchaser its successors and
assigns, to its and their own use forever.
The interest of the Seller in said property, and the interest
transferred by this Xxxx of Sale, is that of absolute ownership.
THAT SELLER hereby warrants to Purchaser its successors and assigns,
that there is hereby conveyed to Purchaser on the date hereof, good title
to the aforesaid aircraft, engines, appliances, parts, instruments,
appurtenances, accessories, furnishings and/or other equipment or property,
free and clear of all Liens and that it will warrant and defend such title
forever against all claims and demands whatsoever.
This Xxxx of Sale shall be governed by the laws of the State of
Washington. This Xxxx of Sale is subject to the terms and conditions of
that certain Used Aircraft Sales Agreement dated as of ---------- (the
"Sales Agreement") and in the event of any conflict, the terms of the Sales
Agreement shall prevail. Capitalized terms not otherwise defined herein
have the meanings given in the Sales Agreement.
IN WITNESS WHEREOF, Seller has caused its corporate name to be
subscribed hereto by its duly authorized representative this --- day of
---------, ----.
KC-ONE, INC.
By
-----------------------------
Its
-----------------------
EXHIBIT C
USED AIRCRAFT AND AIRCRAFT DOCUMENTATION
ACCEPTANCE CERTIFICATE
ABX AIR, INC. ("Purchaser") hereby confirms to [KC-ONE, INC.] ("KC1")
in accordance with the terms and conditions of that certain Used Aircraft
Sales Agreement dated as of December ---, 1995 (as amended, the "Sales
Agreement), by and between, [KC1, KC-TWO, INC. and KC-THREE, INC.
(collectively, "Seller"), that one (1) Boeing Model 767-281 Used Aircraft;
Registration Markings:
Manufacturer's Serial Number:
with two (2) installed General Electric Model CF6-80A engines,
Manufacturer's Serial Numbers:
Position (1)
Position (2)
together with the Aircraft Documentation applicable to the Aircraft as
described on Attachment 1 hereto and made a part hereof and with the
operating times and cycles as accumulated on the Aircraft up to the time of
delivery as described on Attachment 2 hereto and made a part hereof is
accepted by Purchaser under the Sales Agreement. Further, except as noted
on Attachment 3 hereto, the Aircraft and Aircraft Documentation is in
Delivery Condition.
ABX AIR, INC.
By
---------------------------
Its
---------------------
Attachments 1 and 2
Attachment 1 to
Exhibit C to
AIRCRAFT DOCUMENTATION
Identification
Title/Description Number Quantity
----------------- ----------------- -----------------
Attachment 2 to
Exhibit C to
AIRCRAFT HOURS AND CYCLES
as of -------------, ---
BOEING MODEL 767-281
Registration Markings ---------- Serial Number ----------
A. Airframe:
Aircraft Total Time (Hours
-------------
Aircraft Total Landings (Cycles)
-------------
Aircraft (& Engine) "A" Check - Time to next check
-------------
Aircraft (& Engine) "C") Check - Time to next check
-------------
Aircraft Special Check(s) - Time to next check
-------------
B. General Electric Engine - Model CF6-80A:
Cycles to next
Cycles Since Replacement of
Serial Total Engine Total Last Shop Lowest Life
Position Number Cycles Time Visit Limited Part
-------- ------ ------ ------ ------------ --------------
1
2
X. Xxxxxxx APU - Model GTCP331-20A:
Cycles to Next
Serial Total Total Hours Since ANA's Replacement of Lowest
Number Hours Cycles Last Overhaul Life Limited Part
------- ------- ------- ------------ -----------------
D. Landing Gear:
Hours/Cycles Hours/ Cycles
Serial Total Since to Calendar
Number Hours/Cycles Overhaul Date Overhaul
------- ------- ------- -------------
Nose Landing Gear
Right Main Gear
Left Main Gear
E. Maintenance Schedule As of [ * ]:
Accomplish "A" Check [ * ]
Accomplish "C" Check:
System Maintenance
Requirements (SYMR): [ * ]
Structure Maintenance
Requirements (STMR): [ * ]
Accomplish Heavy Maintenance [ * ]
Accomplish Engine Repair [ * ]
Accomplish HSI [ * ]
Accomplish CSI [ * ]
Accomplish APU Overhaul [ * ]
Accomplish Landing Gear Overhaul [ * ]
* Sampling Structural Inspection program and Corrosion Prevention and
Control Program in accordance with ANA's Maintenance Program
* Blank space contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-
2 under the Securities Exchange Act of 1934.
Attachment 3 to
Exhibit C to
DISCREPANCIES LIST
EXHIBIT D
IRREVOCABLE STANDBY LETTER OF CREDIT
[ISSUER]
--------------------
--------------------
Date:
-------------
Irrevocable Standby Letter of Credit No. ---------
[KC-ONE, INC.]
c/o ITOCHU AirLease Corporation
NXB Xxxxxx Xxxxxxxx, 0X
00-00, Xxxxxx-Xxxxx 2-chome
Xxxxxx-xx, Xxxxx 000
Xxxxx
Ladies and Gentlemen:
We hereby establish in your favor our Irrevocable Standby Letter of
Credit number --------------- for the account of:
Airborne Freight Corporation; and
ABX Air, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
X.X.X.
Funds under this Standby Letter of Credit are available to you against
your sight draft(s) in the form of Exhibit A, attached hereto, drawn on us
up to the aggregate amount of --------- (US$---------), stating on their
face the number and date of this Standby Letter of Credit. Drafts must be
accompanied by a signed certificate in the form of Exhibit B, attached
hereto, dated the date of your draft.
Presentation of such draft(s) and certificate(s) shall be made at
---------------- (address and facsimile number) by means of telefacsimile
and we shall be entitled to rely thereon as if such draft(s) and
certificate(s) had been presented in person. In addition, any draft or
certificate may be presented as described above by mail, express mail or in
person, effective upon our receipt thereof.
We hereby agree that each draft drawn under and in conformity with the
terms of this Standby Letter of Credit will be duly honored by us upon due
delivery of the certificates, if presented as described above on or before
the expiration date.
Each draft presented hereunder in conformity with the terms hereof shall be
duly honored by us by payment to you of the amount of such draft in
immediately available funds:
(a) not later than 3:00 p.m., [issuing bank city] time, on the
day such draft is presented to us as aforesaid, if such presentation
is made to us at or before 9:00 a.m., [issuing bank city] time, or
(b) not later than 3:00 p.m., [issuing bank city] time, on the
business day following the day such draft is presented to us as
aforesaid, if such presentation is made to us after 9:00 a.m.,
[issuing bank city] time.
Partial drawings under this Standby Letter of Credit are permitted.
This Standby Letter of Credit shall expire on (date).
This Letter of Credit is subject to the Uniform Customs and Practice
for Documentary Credits (1993 Revision), International Chamber of Commerce,
Publication No. 500 (the "Uniform Customs"). This Letter of Credit shall
be deemed to be made under the laws of the State of --------------,
including Article 5 of the Uniform Commercial Code, and shall, as to
matters not governed by the Uniform Customs, be governed by and construed
in accordance with the law of the State of -------------.
Notwithstanding Article 48 of the Uniform Customs, this Letter of
Credit may be transferred.
Except as expressly stated herein, this undertaking is not subject to
any agreement, requirement or qualification. The obligation of -----------
Bank under this Credit is the individual obligation of ------------- Bank
and is in no way contingent upon reimbursement with respect thereto, or
upon our ability to perfect any lien, security interest or any other
reimbursement.
This Letter of Credit sets forth in full the terms of our undertaking
and shall not in any way be modified, amended or amplified by reference to
any documents, instruments or agreements referred to herein, or in which
this Letter of Credit is referred to or to which this Letter of Credit
relates and any such reference shall not be deemed to incorporate herein by
reference any documents, instruments and agreements.
Very truly yours,
By
--------------------------
Name:
Title:
EXHIBIT A
SIGHT DRAFT
Date of Draft:
Drawn Under: Irrevocable Standby Letter of Credit No. [----]
To the Order of: [Seller]
Pay --------------------------- United States Dollars AT SIGHT by wire
transfer of immediately available funds in such amount to the account of
Seller as follows:
[Describe account details]
[Seller]
By:
-----------------------------
Its:
-----------------------------
Attachment: Certificate for Drawing
EXHIBIT B
CERTIFICATE FOR DRAWING
The undersigned, hereby certifies to ------------- (the "Bank"), with
reference to the Irrevocable Standby Letter of Credit No. ------- (the
"Letter of Credit") issued by the Bank in favor of [KC-ONE, INC.]
("Seller"), that:
(i) Seller is presenting a signed sight draft herewith to draw funds
under the Letter of Credit in the amount of US$----------.
(ii) Demand for payment under the Letter of Credit is being made prior
to the expiration thereof.
(iii) Seller is entitled to draw on the Letter of Credit, in the amount
stated in paragraph (i) above, under that certain Used Aircraft
Sales Agreement, dated as of [-----------], 1995 (as amended,
the "Agreement").
IN WITNESS WHEREOF, Seller has executed and delivered this Certificate
as of the ----- day of ----------, ----.
[KC-ONE, INC.]
By:
-------------------------
Title:
EXHIBIT E
DOCUMENT ESCROW LETTER
----------------, 1995
Messrs. Xxxxx & Xxxxxxx
0000 Mid-America Tower
00 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
ATTENTION: Xxxxx X. Xxxxxx
Re: Boeing 767-281 Aircraft, MSN --------------
Dear Xx. Xxxxxx:
The undersigned [KC-ONE, Inc.], a Japanese corporation ("Seller"), and
ABX Air, Inc.. a Delaware corporation ("Purchaser"), have agreed to deliver
to you the following executed original documents with respect to the above-
referenced aircraft (the "Aircraft"), to be held in escrow and distributed
in accordance with these instructions:
A. Documents Deposited by Seller:
1. Original executed Xxxx of Sale with respect to the Aircraft;
2. Original executed FAA Xxxx of Sale on Form 8052-2; and
3. ---- original Standby Letters of Credit as described below:
Issuer Face Amount
a.
b.
c.
B. Documents Deposited by Purchaser:
1. Original executed Used Aircraft and Aircraft Documentation
Delivery Receipt; and
2. Insurance Certificate with respect to the Aircraft naming Seller
and its affiliates as an additional insured.
Collectively, the documents delivered to you by the Seller are the
"Seller Documents", and the documents delivered to you by the Purchaser are
the "Purchaser Documents".
When you have received both all of the Purchaser Documents and the
Seller Documents, please confirm these facts to Purchaser and Seller via
facsimile.
Upon receipt by you of confirmation that the Federal Aviation
Administration ("FAA") has received notification from the Japanese Civil
Aviation Board ("JCAB") that the Aircraft has been de-registered from
Japanese Registration ("De-Registration Notice"), you are instructed and
authorized to notify -------- to release the $---------- of funds (the
"Escrow Funds") to Seller's account (the "Release Notice"). This notice
shall be via facsimile or telephone conference call.
Upon receipt by you of confirmation from ---------- (the "Funds Bank")
that the Funds Bank has received the Escrow Funds for the benefit of
Seller, you are instructed and authorized to (a) file the Form 8052-2 with
the FAA, (b) distribute the remaining Seller Documents to Purchaser, and
(c) distribute the Purchaser Documents to Seller.
If the conditions to delivery by you of the Release Notice
contained in the prior paragraphs have not been met or waived in writing
within seven calendar days of the date of this letter, you are irrevocably
authorized and instructed to return the Seller Documents to Seller and the
Purchaser Documents to Purchaser. Without limitation, you understand that
Purchaser shall have no right to restrain or delay return of the Seller
Documents to Seller under such circumstances.
We hereby confirm to you that you are entitled to act in
accordance with this letter upon receipt of a copy of the releases by
facsimile unless instructed otherwise, and hereby further confirm that you
are entitled to act upon joint written instructions signed or orally
communicated by Seller and Purchaser that may vary from the terms of this
letter.
The Purchaser hereby confirms to you that it will be responsible
for and hereby agrees to pay for fees and expenses incurred in connection
with acting as document escrow agent, and in connection with the
preparation and delivery of an opinion to Purchaser with respect to title.
The notices that we have requested that you deliver pursuant to this
agreement, and any delivery of the Seller or Purchaser Documents in
accordance with this letter, should be delivered to the following:
If to Seller: [KC-ONE, INC.]
c/o ITOCHU AirLease Corporation
NXB Xxxxxx Xxxxxxxx, 0X
00-00, Xxxxxx-Xxxxx 2-chome
Minato-ku, Tokyo 000
Xxxxx
Attention: Manager
Facsimile: 011-813-3497-8145
Telex: 2423154 TKAFC J
With a copy to: Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telefax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
If to Purchaser: ABX AIR, INC.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
X.X.X.
Attention: President
Facsimile: 000-000-0000
Telex: 214317AIRBN-EXP-WIMI
With a copy to: AIRBORNE FREIGHT CORPORATION
Corporate Secretary/Counsel
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
X.X.X.
Telefax No.: (000) 000-0000
Thank you for your assistance.
SELLER: [KC-ONE, INC.]
By
-----------------------------
Its
-----------------------------
PURCHASER: ABX AIR, INC.
By
-----------------------------
Its
-----------------------------
EXHIBIT F
FUNDS ESCROW AGREEMENT
WITH RESPECT TO AIRCRAFT --------
THIS FUNDS ESCROW AGREEMENT (the "Funds Escrow Agreement") is made and
entered as of this ---- day of ----------, ----, by and among [KC-ONE,
INC.], a Japanese corporation ("Seller"); ABX AIR, INC., a Delaware
corporation ("Purchaser"); and -------------------------- ("Escrow Agent").
RECITALS
A. Purchaser and Seller, [KC-TWO, INC., and KC-THREE, INC.] are
parties to that certain Used Aircraft Sales Agreement dated as of December
---, 1995 (as amended, the "Sales Agreement").
B. This Funds Escrow Agreement is established in connection with the
delivery of Aircraft -------- (the "Aircraft").
C. Under the Sales Agreement, Purchaser and Seller are required to
place certain funds in escrow with Escrow Agent in connection with delivery
of the Aircraft, and to provide for their disbursement upon satisfaction or
waiver of the conditions contained in the Sales Agreement. In connection
therewith, Purchaser, Seller and [Xxxxx & Xxxxxxx] (the "Document Escrow
Agent") have established with respect to delivery of the Aircraft a
document escrow pursuant to a Document Escrow Letter of even date herewith
(the "Document Escrow Agreement").
NOW, THEREFORE, in consideration of the promises and mutual
representations, warranties, covenants and agreements contained in this
Funds Escrow Agreement, the parties agree as follows:
AGREEMENT
1. Definitions. Capitalized terms not otherwise defined herein
shall have the meaning given in the Sales Agreement.
2. Establishment of Escrow. In accordance with the provisions of
Section 3.4 of the Sales Agreement, Purchaser shall, at least one Business
Day prior to the delivery date for the Aircraft established under the Sales
Agreement, place on deposit with Escrow Agent an amount, immediately
available dollars, equal to the sum of (a) $--------------, plus (b) the
fees of the Escrow Agent established in Section 9 hereof (such sum, the
"Escrow Funds"). Escrow Agent hereby agrees that the Escrow Funds shall be
held, invested and disbursed for the benefit of the parties and their
respective successors and assigns as provided in this Funds Escrow
Agreement.
3. Sales Agreement Controls. This Agreement shall not modify, amend
or otherwise alter the duties, obligations, liabilities, rights or benefits
of Seller or Purchaser under the Sales Agreement.
4. Investment of Escrow Funds. The Escrow Funds may be invested by
Escrow Agent in certificates of deposit issued by banks or trust companies,
short term United States debt instruments or short term debt instruments
guaranteed by the United States or agencies of the United States, or money
market funds consisting of debt instruments of the United States or
agencies of the United States, in accordance with instructions, from time
to time given in writing to Escrow Agent by Purchaser. Escrow Agent shall
not incur any liability in acting in accordance with this Funds Escrow
Agreement, and in good faith in making investments herein authorized. All
income earned and received from the investments shall be applied first to
the fees payable to Escrow Agent, and any remainder shall be paid to the
Purchaser.
5. Disbursement of Escrow Funds.
5.1 Disbursement to Seller. Immediately upon satisfaction of the
conditions contained in Section 6.1 and 6.2 hereof (the "Disbursement
Conditions"), Escrow Agent shall pay to Seller, its successors or assigns,
the entire balance of the Escrow Funds less the fees of Escrow Agent and
any interest or profit earned in respect thereof, which shall be paid to
the following account of Seller (the "Seller Account"):
[Details for Seller's account.]
5.2 Return of Funds to Purchaser. In the event that the
Disbursement Conditions have not been met on or before seven (7) calendar
days after date hereof, the Escrow Funds and any interest or profit earned
in respect thereof (less the fees of Escrow Agent) shall be returned to
Purchaser. When all monies held by Escrow Agent have been finally
distributed in accordance herewith, this Funds Escrow Agreement shall
terminate.
6. Conditions to Disbursement of Escrow Funds.
6.1 Deposits by Purchaser. Purchaser shall have deposited with
Escrow Agent the full amount of Escrow Funds. Escrow Agent shall,
immediately upon receipt of the Escrow Funds, notify Purchaser and Seller.
6.2 Authorization of Release. Escrow Agent shall have received
notification from the Document Escrow Agent that all conditions to release
of the Escrow Funds have been met or waived (the "Release Notice"). The
Release Notice may be delivered via facsimile or telephone conference call.
7. Liability of Escrow Agent.
7.1 Conflicting Demands. Escrow Agent shall be obligated to
perform only such duties as are expressly set forth herein and need not
take notice of any provisions of the Sale Agreement. In case of
conflicting demands upon Escrow Agent, it shall be entitled, at its option:
(a) to refuse to comply therewith as long as such
disagreement continues and to make no delivery or other disposition of any
funds or property then held (and Escrow Agent shall not be or become liable
in any way for such failure or refusal to comply with such conflicting or
adverse claims or demands); and
(b) to continue to refrain and to so refuse to act until
all differences shall have been adjusted by agreement and Escrow Agent
shall have been notified thereof in writing signed jointly by Seller and
Purchaser or
(c) to interplead the portion of Escrow Funds in dispute.
7.2 No Obligation to Take Legal Action. Escrow Agent shall not
be under any obligation to take any legal action in connection with this
Funds Escrow Agreement or for its enforcement, or to appear, prosecute or
defend any action or legal proceeding which, in its opinion, would or might
involve it in any costs, expense, loss or liability unless and as often
required by it, it shall be furnished with security and indemnity
satisfactory against all such costs, expenses, losses or liabilities.
7.3 Status of Escrow Agent. Escrow Agent is to be considered
and regarded as a depository only and shall not be responsible or liable
(except for its failure to exercise due care) for the sufficiency or
correctness as to form, manner of execution, or validity of any instrument
deposited in this escrow, nor as to the identity, authority or rights of
any person executing the same. Its duties hereunder shall be limited to the
safekeeping, investing and/or delivery of such money and instruments
received by it as Escrow Agent and for the disbursement of same in
accordance with the written Escrow Instructions given it in accordance with
this Funds Escrow Agreement.
7.4 Written Instructions of the Parties. Notwithstanding
anything herein contained to the contrary, Escrow Agent shall, at all
times, have full right and authority to pay over and disburse the Escrow
Funds in accordance with the joint written [or oral] instructions of Seller
and Purchaser.
8. Indemnity. The Seller and Purchaser agree to and hereby do waive
any suit, claim, demand or cause of action of any kind which they or it may
have or may assert against the Escrow Agent arising out of or relating to
the execution or performance by the Escrow Agent of this Funds Escrow
Agreement, unless such suit, claim, demand or cause of action is based upon
a breach of this Funds Escrow Agreement by the Escrow Agent or the willful
misconduct or gross negligence or bad faith of the Escrow Agent. They
further agree to indemnify the Escrow Agent against and from any and all
claims, demands, costs, liabilities and expenses, including reasonable
counsel fees, which may be asserted against it or to which it may be
exposed or which it may incur by reason of its execution or performance of
this Funds Escrow Agreement other than (a) usual and customary overhead
expenses and (b) claims, demands, costs, liabilities and expenses arising
out of a breach of this Agreement by the Escrow Agent or the willful
misconduct or gross negligence or bad faith of the Escrow Agent. Such
agreement to indemnify shall survive the termination of this Funds Escrow
Agreement until extinguished by any applicable statute of limitations.
9. Escrow Agent's Fee. Escrow Agent shall be entitled to receive a
fee of $---------- for services to be rendered hereunder.
10. Miscellaneous Provisions.
10.1 Parties in Interest. This Agreement is not intended, nor
shall it be construed, to confer any enforceable rights on any person not a
party hereto. All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto.
10.2 Attorneys' Fees. In the event of any action to enforce any
provision of this Agreement, or on account of any default under or breach
of this Agreement, the prevailing party in such action shall be entitled to
recover, in addition to all other relief, from the other party all
attorneys' fees incurred by the prevailing party in connection with such
action (including, but not limited to, any appeal thereof).
10.3 Entire Agreement. This Agreement constitutes the final and
entire agreement among the parties with respect to the subject matter
hereof and supersedes all prior arrangements or understandings.
10.4 Notices. All notices, requests, consents and other
communications provided for herein to any party shall be deemed to be
sufficient if contained in a written instrument either: (a) delivered in
person or by facsimile or telex; or (b) sent by first-class registered or
certified mail, postage prepaid, addressed to the party at the address set
forth below, or such other address as may be hereafter be designated in
writing by the party.
If to Seller: [KC-ONE, INC.]
c/o ITOCHU AirLease Corporation
NXB Xxxxxx Xxxxxxxx, 0X
00-00, Xxxxxx-Xxxxx 2-chome
Minato-ku, Tokyo 000
Xxxxx
Attention: Manager
Facsimile: 000-0000-0000
Telex: 2423154 TKAFC J
With a copy to: Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telefax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
If to Purchaser: ABX AIR, INC.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
X.X.X.
Attention: President
Facsimile: 000-000-0000
Telex: 214317AIRBN-EXP-WIMI
With a copy to: AIRBORNE FREIGHT CORPORATION
Corporate Secretary/Counsel
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
X.X.X.
Telefax No.: (000) 000-0000
If to Agent: ----------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Notice shall be deemed given, made or received when received. Any
party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section for the giving of notice.
10.5 Changes. The terms of this Agreement may not be modified
or amended, or any of the provisions hereof waived, temporarily or
permanently, except pursuant to the written consent of all the parties.
10.6 Severability. If any term or provision of this Funds
Escrow Agreement or the application thereof as to any person or
circumstance shall to any extent be invalid or unenforceable, the remaining
terms and provisions of this Funds Escrow Agreement or the application of
such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby
thereto and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
10.7 Facsimile. This Agreement and the Releases may be executed
by facsimile signature, with the original to be mailed by U.S. mail
thereafter.
10.8 Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart shall be deemed to be an
original instrument. All such counterparts together shall constitute but
one Agreement.
10.9 Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed to be a part of this Agreement.
10.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington without
regard to the principles of conflicts of laws.
10.11 Binding Effect. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
affiliates, successors and assigns. Except as set forth above, nothing in
this Agreement, express or implied, is intended to confer on any person
other than the parties hereto or their respective heirs, successors, and
assigns, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
SELLER: [KC-ONE, INC.]
By
-----------------------------
Its
-----------------------------
PURCHASER: ABX AIR, INC.
By
-----------------------------
Its
-----------------------------
AGENT:
----------------------------------
By
-----------------------------
Its
-----------------------------
EXHIBIT G
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") is made as of this ---- day
of December, 1995 by AIRBORNE FREIGHT CORPORATION, a Delaware corporation
("Guarantor") in favor of each of KC-ONE, INC., KC-TWO, INC. and KC-THREE,
INC. (referred to as to each and collectively, the "Seller") in order to
induce the Seller to enter into that certain Used Aircraft Sales Agreement
of even date herewith (as amended, the "Sales Agreement") with ABX AIR,
INC. ("Purchaser"). Capitalized terms not otherwise defined herein have
the meanings used in the Sales Agreement.
1. Guaranteed Obligations. The Guarantor absolutely and
unconditionally guarantees each and every obligation of Purchaser to Seller
(or any one of them) now or hereafter arising under or related to the Sales
Agreement (or any other document now or hereafter entered into in
connection therewith), whether presently existing or hereafter arising
(collectively, the "Obligations"), including, without limitation,
obligations with respect to Deposits, payments, indemnities, damages and
costs of collection. Guarantor guaranties the Obligations without set-off,
counterclaim, recoupment or deduction of any amounts owing or alleged to be
owing by Seller (or any one of them) to Purchaser.
2. Guarantor's Consent. The Guarantor hereby consents to all terms
and condition of the Sales Agreement and further consents that the Seller
(or any one of them) may without further consent or disclosure and without
affecting or releasing the obligations of Guarantor hereunder: (a) amend
or modify the Sales Agreement or any other document now or hereafter
entered into in connection therewith; (b) waive or delay the exercise of
any rights or remedies of the Seller against the Purchaser; (c) waive or
delay the exercise of any rights or remedies of the Seller against any
surety or guarantor (including, without limitation, rights or remedies of
the Seller against Guarantor under this Guaranty); (d) waive or delay the
exercise of any rights or remedies of the Seller in respect of any
collateral (including any Deposit) now or hereafter held; (e) release any
surety or guarantor; or (f) renew, extend, waive or modify the terms of any
Obligation or the obligations of any surety or guarantor, or any instrument
or agreement evidencing the same.
3. Guarantor's Representations. Guarantor represents and warrants
to Seller that it has reviewed such documents and other information as it
has deemed appropriate in order to permit it to be fully apprised of
Purchaser's financial condition and operations and has, in entering into
this Guaranty made its own credit analysis independently and without
reliance upon any information communicated to it by Seller. Guarantor
expressly waives any requirement that Seller advise, disclose, discuss or
deliver notice to Guarantor regarding Purchaser's financial condition or
operations. Seller shall provide concurrently to Guarantor copies of any
notices of default delivered to Purchaser provided that the failure to
deliver such notice to Guarantor shall not release Guarantor of its
obligations hereunder.
4. Guarantor's Waiver. The Guarantor agrees that it shall not be
necessary for Seller to institute suit or exhaust its legal remedies
against Purchaser in order to enforce this Guaranty.
5. Unconditional Guaranty. The obligations of the Guarantor under
this Guaranty are absolute and unconditional without regard to the
obligations of any other party or person. The obligations of the Guarantor
hereunder shall not be in any way limited or effected by any circumstance
whatsoever. Guarantor hereby waives all defenses of a surety to which it
may be entitled by statute or otherwise. The obligations of Guarantor
hereunder are independent of the Obligations of Purchaser, and a separate
action or actions may be brought and prosecuted against Guarantor whether
or not any action is brought against Purchaser or whether or not Purchaser
is joined in any such action or actions.
6. Continuing Guaranty. This Guaranty is a continuing one and shall
be binding upon the Guarantor regardless of how long before or after the
date hereof any Obligation was or is incurred. This Guaranty shall be
valid and enforceable and shall not be impaired or affected by the
occurrence of any of the following, all whether or not Guarantor shall have
had notice or knowledge of any of them: (a) any failure to enforce or
agreement not to enforce any right, power or remedy with respect to any
Obligation; (b) the stay or enjoining by order of court, operation of law
or otherwise of the exercise of any such right, power or remedy; (c) any
waiver of any right, power or remedy or of any default with respect to an
Obligation; or (d) an Obligation at any time being found to be illegal,
invalid or unenforceable in any respect.
7. Waiver of Subrogation. Guarantor hereby irrevocably waives all
claim it has or may acquire against Purchaser in respect of the
Obligations, including rights of exoneration, reimbursement, contribution
and subrogation. Guarantor agrees to indemnify Seller, and hold it
harmless from and against all loss and expense, including legal fees,
suffered or incurred by Seller as a result of claims to avoid any payment
received by Seller from Purchaser, or for its account or from collateral,
with respect to the Obligations of Purchaser guaranteed herein.
8. Fees and Expenses. In the event of any action to enforce any of
the terms or conditions of this Guaranty, the prevailing party in such
action and any appeal resulting therefrom shall be entitled to recover from
the other party reasonable attorney fees fixed as part of the cost by the
court in which such action shall be pending.
9. Payment in U.S. Funds; Taxes. All payments to be made by
Guarantor hereunder shall be paid in United States Dollars free and clear
of all Indemnified Taxes. In the event that Guarantor fails to pay any
Indemnified Tax and such Indemnified Tax is levied upon, assessed against,
collected from, or otherwise imposed on the Seller, Guarantor shall
immediately upon demand indemnify, protect, defend and hold the Seller
harmless from and against all such Indemnified Taxes, together with any
interest, penalties or other additions to such tax, and other costs
(including, without limitation, attorneys' fees and other professional
fees) incurred by Seller in connection with such Indemnified Tax or its
enforcement of this Section 9.
10. Seller's Remedies. No delay in making demand on the Guarantor
for satisfaction of the obligations of the Guarantor hereunder shall
prejudice Seller's right to enforce such satisfaction. All of Seller's
rights and remedies shall be cumulative, and any failure of Seller to
exercise any right hereunder shall not be construed as a waiver of the
right to exercise the same or any other right at any time.
11. Notices. All notices, requests, demands and other communication
required or permitted to be given by any party hereunder ("Notices") shall
be in writing and shall be sufficiently given if delivered personally or by
a reputable over-night delivery service or by telex or telecopier or
similar facsimile transmission or if sent by registered or certified mail,
postage prepaid, to the following address:
Seller: KC-ONE, INC.
KC-TWO, INC.
KC-THREE, INC.
c/o ITOCHU AirLease Corporation
NXB Xxxxxx Xxxxxxxx, 0X
00-00, Xxxxxx-Xxxxx 2-chome
Minato-ku, Tokyo 000
Xxxxx
Attention: Manager
Facsimile: 000-0000-0000
Telex: 2423154 TKAFC J
With a copy to: Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telefax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Guarantor: Airborne Freight Corporation
Corporate Secretary/Counsel
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
X.X.X.
Telefax No.: (000) 000-0000
Notice shall be deemed given, made or received when received. Any
party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section for the giving of notice.
12. Governing Law. This Guaranty shall be governed by and construed
in accordance with the internal laws of the State of Washington.
13. Consent to Jurisdiction, Waiver of Immunities. The Guarantor
hereby irrevocably submits to the jurisdiction of any State or federal
court sitting in Seattle, King County, Washington, in any action or
proceeding brought to enforce or otherwise arising out of or relating to
this Guaranty and irrevocably waives to the fullest extent permitted by law
any objection which it may now or hereafter have to the laying of venue in
any such action or proceeding in any such forum, and hereby further
irrevocably waives any claim that any such forum is an inconvenient forum.
The Guarantor agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in any other jurisdiction by suit
on the judgment or in any other manner provided by law. Nothing herein
shall impair the right of the Seller to bring any action or proceeding
against the Guarantor or its property in the courts of any other
jurisdiction and Guarantor irrevocably submits to the nonexclusive
jurisdiction of the appropriate courts sitting in any place where property
of the Guarantor is located.
14. Assignment; Amendment. This Guaranty shall inure to the benefit
of Seller and its successors and assigns. This Guaranty shall be binding
upon the Guarantor and its permitted successors and assigns. Guarantor may
not assign or otherwise transfer all or any part of its rights or
obligations hereunder without the prior written consent of Seller. The
provisions of this Guaranty may be amended or modified only by the written
agreement of Seller and the Guarantor.
15. Severability. Any provision of the Guaranty which is prohibited
or unenforceable in any jurisdiction shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof.
IN WITNESS WHEREOF the Guarantor has caused its duly authorized offers
to execute and deliver this Guaranty as of the date first above written.
GUARANTOR: AIRBORNE FREIGHT CORPORATION
By
-----------------------------
Its
-----------------------------
EXHIBIT H
[ITOCHU CORPORATION]
December 22, 1995
ABX Air, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
X.X.X.
Re: Used Aircraft Sales Agreement dated December ----, 1995, (the
"Sales Agreement") by and between ABX AIR, INC. ("Purchaser") and
KC-ONE, INC., KC-TWO, INC. and KC-THREE, INC. (collectively, "Seller").
Dear Sirs:
This letter of guaranty (the "Guaranty") is issued by Itochu
Corporation, a Japanese corporation ("Guarantor"), pursuant to Section 3.6
of the above referenced Sales Agreement. Capitalized terms not otherwise
defined herein have the meanings given in the Sales Agreement.
The Guarantor hereby unconditionally and irrevocably guaranties for
the benefit of Purchaser the obligations of Seller under the Sales
Agreement. Neither the transfer of any Aircraft from and among Seller, or
any other affiliate of the Guarantor, nor the liquidation of Seller, shall
relieve or discharge Guarantor of its obligations to Purchaser hereunder.
Under no circumstances shall Guarantor be liable for consequential or
punitive damages.
The Guarantor consents to all terms and conditions of the Sales
Agreement and further consents that the Purchaser may, without further
agreement or disclosure and without affecting or releasing the obligations
of Guarantor hereunder, amend or modify the Sales Agreement or any other
document now or hereafter entered into in connection therewith. Guarantor
represents and warrants to Purchaser that Seller are subsidiaries of
Guarantor and Guarantor will receive benefit from Purchaser's entry into
and performance of the Sales Agreement. Guarantor waives all surety
defenses. Nor does Purchaser need to fully exhaust its remedies against
Seller in order to enforce this guaranty.
The provisions of this Guaranty constitute the entire agreement
between Purchaser and Guarantor. No provisions of this Guaranty may be
waived except in writing. The benefits of this Guaranty may not be
assigned or transferred except as permitted under Section 10.8 of the Sales
Agreement.
This Guaranty is governed by the laws of the State of Washington. Any
dispute concerning this Guaranty shall be subject to the non-exclusive
jurisdiction of the federal and state courts located in Seattle,
Washington, and Guarantor hereby consents to the selection of such forum
and waives all objections in connection therewith.
Sincerely,
ITOCHU CORPORATION
By
-----------------------------
Its
-----------------------------
EXHIBIT I
AIRCRAFT DOCUMENTATION
A. AIRCRAFT RECORDS
1. All historical records for aircraft and engines
2. APU historical records and schedule of overhaul (if applicable).
3. Maintenance and inspection program planning manual including work
task cards. MR - Maintenance requirement manuals.
4. Airframe and engines current inspection status and operating
times including structural sampling inspection records of inspections
performed on other of Lessee's aircraft where credit for such inspections
were applied against the Aircraft.
5. Current status of APU inspection and operating times.
6. List of all installed components (LRU's) showing part number,
serial number, manufacturer and accumulated operating time (hours, cycles,
calendar time).
7. List and status of life limited parts - aircraft and engines.
8. Airworthiness Directive compliance list for aircraft, engines,
and equipment. List to include date, method, and degree of compliance.
Copy of Engineering Order or Technical order accomplishing A.D. to be made
part of record. If the original work document (E.A., Work Card, etc.)
which was signed by the person accomplishing the A.D. is unavailable, then
a blank copy of the document (in English) will be provided indicating the
date and aircraft time of accomplishment and signature of authorized Q.C.
person certifying work was accomplished per that document.
9. List of manufacturer's service bulletins incorporated and method
of incorporation (i.e. repetitive inspections, interim fix or termination
action).
10. List of modification and/or alternations (excluding
manufacturer's service bulletins if accomplished pursuant to the
manufacturer's instructions) accomplished on the aircraft, engines, and
equipment together with one copy of each modification, alternation,
engineering order and associated drawings and/or data with all major
changes to be provided in English. XXX will assist in interpretation from
Japanese to English.
11. List of FAA Supplemental Type Certificates (STC's) and/or foreign
aviation authority approved modifications incorporated, together with a
copy of each certificate and/or associated data except STC's are to be
provided in English.
12. FAA approved Airplane Flight Manual.
13. Flight (operations) manual currently used by present operator.
14. Weight and balance document, including last weighing report.
15. Weight and balance supplement - equipment list.
16. Wiring diagram manual, including wiring diagram equipment lists.
17. Electrical load analysis report.
18. Manufacturer's maintenance manuals - aircraft and engines.
19. Manufacturer's operations manuals - aircraft and engines.
20. Manufacturer's overhaul manuals - airframe and engines.
21. Manufacturer's structural repair manual.
22. Manufacturer's illustrated parts catalog - airframe and engines.
23. Manufacturer's tool catalog (if applicable).
24. Miscellaneous documents or manuals pertaining to aircraft
storage, engine handling, aircraft recovery and ground crew training (if
applicable).
25. Cross reference parts catalog (Listing of aircraft manufacturer's
part numbers corresponding to parts manufacturer's and current operator's
part numbers for the same parts).
26. Flight test reports - list flight accomplished prior to delivery.
27. Last accomplished flight recorder calibration (if the aircraft is
to be delivered before any calibration is required to be accomplished, XXX
is to provide the record of the initial certification of the flight
recorder).
28. List of non-United States manufactured parts, components and/or
equipment installed on the Aircraft after the date such Aircraft was
delivered new by the Aircraft Manufacturer to the initial owner which
parts, components or equipment have not been approved or certified by the
FAA.
29. Inventory list of aircraft loose equipment.
30. Letter detailing any major incident and/or accidents involving
each aircraft (if none, the letter should so state).
31. All records initiated by XXX required to comply with the ANA's
aviation regulatory authorities and/or initiated by XXX for ANA's own
benefit.
32. List of current equipment in passenger and flight crew
compartments and/or current interior arrangement diagram.
* Copy to be provided in English for each Aircraft when available.
33. Deferred and carryover maintenance logs (engineering deviation
list).
34. Serviceable tags/shop work cards for those items requiring
overhaul per operators maintenance program.
35. Summary of all major inspections accomplished to aircraft.
36. Aircraft master log (time and cycle status).
37. Serviceable tags or shop work cards for installed time controlled
and time tracked components including engines.
38. Aircraft log books.
39. Aircraft and engine historical records, logs, shop records, etc.,
including work packages for inspections, repairs, routine and non-routine
work scopes up to two (2) years before delivery of each Aircraft.
Inspection cards and landing gear overhaul shop cards up to two (2) years
before delivery of each Aircraft.
B. ENGINE RECORDS
1. Engine log books.
2. Status engine life limited parts with time data (certified by
Q.C.). Need records traceable back to TSN - 0 - Need time (hours and
cycles) trail providing a record of continuous time in service (History
Proof List).
3. Engine historical records - last work package and shop visit
records. For ST&D, need combustion can classification and shop repair
records.
4. Engine test cell records.
5. Engine condition monitoring data.
6. FAA Form 337 or shop release statement for last EHM and shop
visit. Spare engines also.
7. List of accomplished service Bulletins (by engine serial number).
8. Statement regarding the use of O.E.M. parts and approved repairs.
9. Airworthiness directive compliance list and supporting data.
10. Engineering Orders and Engineering Alterations.
