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EXHIBIT 10.45
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AGREEMENT FOR
PURCHASE AND SALE OF
AIRCRAFT
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1.0 DATE AND PARTIES
1.1 DATE. This agreement is effective as of November 25,
1996.
1.2 PARTIES. The parties to this agreement are:
A. International Technical Consultants, Inc. ("ITC")
Attention: Xxxxxxx Xxxxxxxxxx, President
XX Xxx 000 - 77 West 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
B. Aircraft Leasing, Inc. ("Leasing")
Attention: Xxxxxxx X. Xxxxxxxxx, Xx., President
0000 Xxxx 0xx Xx
XXX Xxx'x Xxxxxxx, XX 00000
2.0 RECITATIONS
2.1 ITC; THE AIRCRAFT. ITC owns one Boeing 727-224, serial number
20667, registration number N69739, in cargo configuration,
with three Xxxxx & Xxxxxxx JT8D-9A aircraft engines, serial
numbers 687788, 665294 and 665591 installed thereon, with all
installed thereon, with all installed appliances and
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accessories (collectively, the "Aircraft"). ITC wishes to
sell the Aircraft to Leasing under this agreement.
2.2 LEASING. Leasing owns and leases aviation equipment to
operators holding FAA Part 121 certificates, among them Kitty
Hawk Aircargo, Inc. ("Aircargo"). Leasing wishes to purchase
the Aircraft under this agreement, intending to lease or sell
the Aircraft to Aircargo or other certificated aircraft
operators for use in providing air cargo transportation
services.
3.0 PURCHASE PRICE, PAYMENT AND CLOSING
3.1 PURCHASE, PURCHASE PRICE. Under this agreement, ITC will
sell, assign and deliver to Leasing, and Leasing will
purchase, the Aircraft, with all operational and maintenance
records pertaining to the Aircraft, which are identified in
Exhibit A (the "Aircraft Records"), and with ITC's obligation
to pay up to $500,000 of the post-closing costs of a "C" check
and associated maintenance for the Aircraft under 3.3, for an
aggregate purchase price of $4,700,000.
3.2 CLOSING. Closing will occur by escrow through Federal
Aviation Title Company ("FATCO"), Oklahoma City, Oklahoma, on
or before November 29, 1996. Leasing will pay all escrow fees
charged by FATCO in connection with the closing.
3.3 EXTRAORDINARY MAINTENANCE. At closing, ITC promises to
deliver $500,000 (the "escrow") out the purchase price in
escrow to FATCO. FATCO must hold the escrow at interest and
must disburse therefrom to Leasing, in whole or in part from
time to
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time up to the aggregate amount of the escrow plus interest
earned thereon, upon Leasing's request and certification in
writing to FATCO no later than one year after closing that
Leasing has incurred costs in the amount of the requested
disbursement for a "C" check (which may be, at Leasing's
election, a "C" check under the maintenance program of Custom
Air Transport, Inc., the maintenance program of Kitty Hawk
Aircargo, Inc., or the maintenance program of another
certificated cargo air carrier chosen by Leasing) and
associated maintenance for the Aircraft performed by Kitty
Hawk Aircargo, Inc., Aero Corp, AAR of Oklahoma City, or
another certified FAA maintenance station chosen by Leasing.
If on the anniversary of closing any amount remains in the
escrow for which Leasing has not so requested disbursement,
FATCO must deliver the remaining escrow to LeasingqM_ a
reduction in the purchase price of the Aircraft. FATCO will
have no further obligation to ITC or Leasing with respect to
the escrow. ITC shall have no rights in the escrow and no
other obligation with respect to maintenance or condition of
the Aircraft.
3.4 INSPECTION. Leasing has inspected the Aircraft and the
Aircraft Records. If at any time before closing, Leasing
reasonably determines that any condition of the FAA title or
lien records concerning the Aircraft, or that any of ITC's
warranties in Paragraphs 3.6(A) and (B) and 4.1 are untrue,
Leasing may by notice to ITC terminate this agreement, in
which case neither party will have any further obligations
under this agreement.
3.5 DELIVERY. At consummation of closing, ITC will deliver the
Aircraft to Leasing at Aircargo's hangar at XXX Xxxxxxx,
Xxxxx,
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with all avionics and appliances, and will deliver the
Aircraft Records to Leasing either with the Aircraft or at the
offices of Custom Air Transport, Inc., in Ft. Lauderdale,
Florida. Upon accepting delivery of the Aircraft, Leasing
will execute and deliver to ITC a written receipt of
acceptance of the Aircraft, which will constitute (i)
Leasing's acknowledgment that the Aircraft as delivered
confirmed to the terms of this agreement, and (ii) Leasing's
waiver of all claims against ITC with respect to the condition
of the Aircraft, except claims under Paragraphs 3.6(A) and (B)
below; but Leasing's receipt of acceptance will not be deemed
a waiver of any claim by Leasing against any third party under
any warranty assigned to Leasing by ITC. This paragraph is
not intended to give Leasing any right to reject the Aircraft
that would not exist under the other terms of this
agreement.
3.6 LIMITED WARRANTIES, LIMITATION OF WARRANTIES, AND DISCLAIMERS.
A. ITC represents, warrants and promises to Leasing that
ITC holds and will transfer, convey and deliver to
Leasing at closing good and merchantable title to the
Aircraft, free and clear of liens, security
interests, lease or possessory rights, and other
adverse claims and encumbrances (including without
limitation any artisans' liens and any storage or
labor charges of any third persons).
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B. ITC represents and warrants to Leasing that ITC has
no actual knowledge (I) that the Aircraft is not in
good, airworthy and serviceable condition, or that it
has not been regularly maintained in accordance with
FAA requirements, manufacturers' recommendations, and
good maintenance practice, or (ii) that the Aircraft
Records are incomplete or have not been accurately
and regularly maintained in accordance with FAA
requirements; but ITC has made no inspection,
investigation or inquiry in order to make this
representation and warranty.
C. EXCEPT FOR EXPRESS WARRANTIES CONTAINED IN Paragraph
3.6(A) AND Paragraph 3.6(B); THE AIRCRAFT IS BEING
SOLD "AS IS, WHERE IS," WITHOUT ANY EXPRESS OR
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR USE OR PURPOSE, WITHOUT ANY OTHER
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING, OR USE OF TRADE; AND WITHOUT ANY
OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.
WITHOUT LIMITING THE FOREGOING OR ANY OTHER
LIMITATION, WAIVER OR DISCLAIMER CONTAINED IN THIS
AGREEMENT, ITC MAKES NO REPRESENTATION OR WARRANTY
THAT THE AIRCRAFT IS IN ANY RESPECT SUITABLE FOR
ANY USE OR APPLICATION BY LEASING OR AIRCARGO.
D. BOTH PARTIES WAIVE ALL CLAIMS FOR INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
THIS AGREEMENT.
3.7 ITC'S CLOSING OBLIGATIONS. At closing, ITC will execute and
deliver in escrow to FATCO (i) a warranty xxxx of sale (the
"ITC
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xxxx of sale") in the form of Exhibit B, assigning and
transferring to Leasing the Aircraft and the Aircraft Records,
warranting good and unencumbered title as required under
Paragraph 3.6(A), and assigning to Leasing, without recourse,
all expressed and implied warranty rights of ITC with respect
to the Aircraft, including without limitation those under
express or implied warranties with respect to cargo conversion
of the Aircraft, and (ii) an FAA Form 8050-2 xxxx of sale (the
"FAA xxxx of sale"); with escrow instruction that upon
consummation of closing the ITC xxxx of sale is to be
delivered to Leasing and the FAA xxxx of sale is to be filed
with the FAA registry.
3.8 LEASING'S CLOSING OBLIGATIONS. At closing, Leasing will
deliver to FATCO in escrow the purchase price in good funds;
with instructions that the amount delivered (less the escrow
to be retained by FATCO under Paragraph 3.4) is to be
delivered to ITC or it's assigns upon consummation of closing.
4.0 OTHER REPRESENTATIONS AND WARRANTIES
4.1 ITC. ITC represents and warrants to Leasing that (i) ITC is a
Nevada corporation in good standing, whose execution and
delivery of this agreement, and closing under this agreement,
have been duly authorized.
4.2 LEASING. Leasing represents and warrants to ITC that Leasing
is a Texas corporation in good standing, whose execution and
delivery of this agreement, and closing under this agreement,
have been duly authorized.
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5.0 OTHER COVENANTS
5.1 ACTIONS BEFORE CLOSING. Until closing, unless this agreement
is terminated, each party promises to do nothing that would
cause any of its representations or warranties under Paragraph
3.6 and Section 4.0 to become untrue; and each party promises
to exert its best efforts to prevent any of its
representations and warranties from becoming untrue.
5.2 COMMISSION OR FINDERS' FEE. No party will owe any commission
or finder's fee under this agreement. Each party will
indemnify the other and hold it harmless against liability,
loss and cost of defense upon any claim to a commission or
finders fee based upon the actions of the indemnitor.
5.3 TAXES. Leasing will be solely responsible for and timely pay
any sales, use or excise taxes lawfully imposed upon ITC or
Leasing that are attributable to the sale or transfer of the
Aircraft under this agreement.
5.4 RISK OF LOSS. All risk of loss of the Aircraft will be upon
ITC until closing under this agreement, at which time Leasing
will have risk of loss of the Aircraft unless otherwise agreed
in writing by the parties hereafter.
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6.0 GENERAL PROVISIONS
6.1 AMENDMENTS. To amend this agreement, both parties must sign a
written amendment that identifies by paragraph number the
provision that it purports to amend. No noncomplying course
of dealing may be construed to amend this agreement.
6.2 NOTICES. Notices will be in writing. Notices may be given by
US Express Mail, postage prepaid, return receipt requested,
addressed to the intended recipient at its address in
paragraph 1.2, or to such other notice address as that party
designates by notice to the other parties, and any notice so
given will be effective three business days after mailing. A
business day is any day other than a Saturday, Sunday, or
legal holiday in Texas. A notice given by other means will be
effective only when actually received by the addressee.
6.3 CONSTRUCTION. Texas and federal law will govern the effect
and construction of this agreement. This agreement binds and
benefits the parties and their respective successors and
assigns. This agreement constitutes the entire agreement
between the parties, and any prior understanding or
representation of any kind preceding, the date of this
agreement will not be binding on any party except to the
extent expressly incorporated in this agreement in writing.
All representations and warranties contained in this agreement
will survive investigation and closing. No waiver of a
default under this agreement may be construed to be a waiver
of any other default. No rule of construction resolving any
ambiguity against a drafting party will apply. Titles and
headings are only
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for convenient reference and are not to be construed in
interpretation. Exhibits A and B are attached to and
incorporated as part of this agreement.
6.4 ARBITRATION. Any dispute under this agreement must
exclusively be resolved by binding arbitration under the
commercial Arbitration Rules of the American Arbitration
Association (the "AAA"); except that Paragraph 6.3 will govern
applicable law and construction, the locale of the arbitration
will be the locale of the party against whom the first
arbitration claim is filed with the AAA, and the arbitrators
must provide written findings of fact and conclusions of law.
The prevailing party in arbitration or litigation about this
agreement will be entitled to recover its reasonable
attorneys' fees and costs.
INTERNATIONAL TECHNICAL
CONSULTANTS, INC.
By: /s/ XXXXXXX XXXXXXXXXX
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Xxxxxxx Xxxxxxxxxx,
President
AIRCRAFT LEASING, INC.
By: /s/ XXXXXXX X. XXXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxxx, Xx.,
President
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EXHIBIT B
XXXX OF SALE
INTERNATIONAL TECHNICAL CONSULTANTS, INC.
TO AIRCRAFT LEASING, INC.
International Technical Consultants, Inc. ("ITC"), a Nevada
corporation, for good, valuable and sufficient consideration that it
acknowledges receiving, by this xxxx of sale sells, transfers and assigns to
Aircraft Leasing, Inc. ("Leasing") one Boeing 727-224 airframe, serial number
20667, registration number N69739, in cargo configuration, with three Xxxxx &
Xxxxxxx JT8D-9A aircraft engines, serial numbers 687788, 665294 and 665591
installed thereon, with all installed appliances and accessories (collectively,
the "Aircraft"), with all operational and maintenance records pertaining to the
Aircraft.
ITC warrants that it is the lawful owner of the Aircraft; that it has
and by this xxxx of sale it transfers to Leasing good and merchantable title to
the Aircraft, free and clear of all liens, leases, mortgages, security
interests, charges and encumbrances of any kind; and that it shall defend the
title transferred by this xxxx of sale against all claims and demands. ITC
also by this xxxx of sale assigns to Leasing all express and implied warranty
rights of ITC with respect to the Aircraft, including without limitation those
under express or implied warranties with respect to cargo conversion of the
Aircraft.
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This xxxx of sale is delivered under an Agreement for Purchase and Sale of
Aircraft (the "sales agreement") dated November ____, 1996, between ITC and
Leasing. Excepting only the warranties expressed in the preceding paragraph
and the transfer of title that this xxxx of sale does not alter the rights and
responsibilities of ITC and leasing as expressed and limited in the sales
agreement. THE AIRCRAFT IS SOLD "AS IS, WHERE IS," WITHOUT ANY EXPRESS OR
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY USE, AND WITHOUT ANY
OTHER IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING,
OR USE OF TRADE.
Signed November ____, 1996.
INTERNATIONAL TECHNICAL
CONSULTANTS, INC.
By:
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Xxxxxxx Xxxxxxxxxx,
President
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STATE OF TEXAS
COUNTY OF __________________.
On November ____, 1996, before me, a Notary Public in an for said
County and State, personally appeared Xxxxxxx Xxxxxxxxxx, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to this instrument, and acknowledged to me that he
executed this instrument in his authorized capacity on behalf of International
Technical Consultants, Inc., and that by his signature on this instrument
International Technical Consultants, Inc., executed this instrument.
Witness my hand and official seal.
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Notary Public in and for said County
and State
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My commission expires:
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