Exhibit 2.1
AIRCRAFT PURCHASE AGREEMENT
Dated as of October 10, 2002
BETWEEN
XXXXX OIL COMPAny
as SELLER
and
UBICS HOLDING COMPANY
Or Its Assignee
as BUYER
Aircraft Make and Model: Used Boeing VIP 727-44
Aircraft Manufacturer's Serial Number: 19318
Aircraft Registration Xxxx: U.S. Registration Xxxx N44MD
Make and Model of Engines: Xxxxx & Whitney JT8D-9A
Serial Numbers of Engines: 665625, 665839 and 664474
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS ................................................. 3
ARTICLE 2 PURCHASE, SALE AND DELIVERY ................................. 6
2.1. Sale and Purchase .......................................... 6
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2.2. Scheduled Closing Date ..................................... 6
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2.3. Event of Loss Prior to Delivery ............................ 6
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2.4. Damage to Aircraft ......................................... 7
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2.5. Failure or Delay in Performance ............................ 7
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ARTICLE 3 PURCHASE PRICE AND PAYMENT .................................. 7
3.1. Purchase Price ............................................. 7
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3.2. Escrow Account ............................................. 7
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3.3. Deposit .................................................... 7
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3.4. Payment of Purchase Price .................................. 8
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ARTICLE 4 AIRCRAFT FLIGHT CHARGES ..................................... 8
4.1. Flight Charges ............................................. 8
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ARTICLE 5 CONDITION OF AIRCRAFT AT DELIVERY ........................... 8
5.1. BUYER Inspection of Aircraft ............................... 8
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5.2. Demonstration Flight ....................................... 9
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5.3. Condition of Aircraft ...................................... 9
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5.4. Pre-Delivery Evaluation .................................... 1
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5.5. Maintenance Logs ........................................... 1
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5.6. Inspection Report .......................................... 1
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5.7. Evidence of Authority ...................................... 2
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ARTICLE 6 XXXX OF SALE AND OTHER DOCUMENTARY REQUIREMENTS ............. 2
6.1. Conditions to BUYER's Obligations .......................... 2
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6.2. Condition to SELLER's Obligations .......................... 3
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6.3. Closing .................................................... 3
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6.4. Risk of Loss ............................................... 3
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6.5. Limitation on Solicitation ................................. 4
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ARTICLE 7 SELLER ASSIGNMENT OF RIGHTS AND WARRANTIES .................. 4
7.1. Assignable Warranties ...................................... 4
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7.2. Non-Assignable Warranties .................................. 4
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ARTICLE 8 EXPENSES AND TAXES .......................................... 4
8.1. Costs and Expenses of Sale ................................. 4
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8.2. Taxes ...................................................... 5
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8.3. After-Tax Basis ............................................ 5
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8.4. Timing of Payment .......................................... 5
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ARTICLE 9 RETAINED LIABILITIES OF seller ................................ 5
9.1. Retained Liabilities of SELLER .............................. 5
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9.2. Notice ...................................................... 6
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9.3. Refunds ..................................................... 6
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9.4. Defense of Claims ........................................... 6
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ARTICLE 10 WARRANTIES AND COVENANTS OF SELLER ........................... 7
10.1. Corporate Status ............................................ 7
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10.2. Governmental Approvals ...................................... 7
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10.3. Binding ..................................................... 7
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10.4. No Breach ................................................... 7
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10.5. Filings ..................................................... 7
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10.6. Licenses .................................................... 7
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10.7. No Suits .................................................... 7
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10.8. General Obligations ......................................... 7
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10.9. Title to Aircraft ........................................... 8
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10.10. Accuracy of Information Contained in Exhibit A .............. 8
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ARTICLE 11 WARRANTIES AND COVENANTS OF BUYER ............................ 8
11.1. Status ...................................................... 8
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11.2. Government Approvals ........................................ 8
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11.3. Binding ..................................................... 8
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11.4. No Breach ................................................... 8
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11.5. Licenses .................................................... 8
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11.6. No Suits .................................................... 8
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11.7. General Obligations ......................................... 9
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11.8. Filings ..................................................... 9
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ARTICLE 12 ASSIGNMENT ................................................... 9
12.1. Sale or Assignment by BUYER ................................. 9
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12.2. SELLER Cooperation .......................................... 9
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12.3. Protections ................................................. 9
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ARTICLE 13 NOTICES ...................................................... 9
13.1. Manner of Sending Notices ................................... 9
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13.2. Notice Information .......................................... 9
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ARTICLE 14 GOVERNING LAW AND JURISDICTION ............................... 10
14.1. Law ......................................................... 10
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14.2. Jurisdiction ................................................ 10
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ARTICLE 15 MISCELLANEOUS ................................................ 11
15.1. Rights of Parties ........................................... 11
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15.2. Further Assurances .......................................... 11
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15.3. Use of Word "including" ..................................... 11
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15.4. Headings .................................................... 11
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15.5. Invalidity of any Provision ................................. 11
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15.6. Time of the Essence ......................................... 11
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15.7. Amendments in Writing ....................................... 11
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15.8. Entire Agreement.............................................. 11
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15.9. Counterparts.................................................. 11
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AIRCRAFT PURCHASE AGREEMENT
THIS AIRCRAFT PURCHASE AGREEMENT is made and entered into as of this
10th day of October, 2002 by and between UBICS HOLDING COMPANY, a Delaware
corporation whose address and principal place of business is at 000 Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000 (such company or its Assignee
being referred to herein as "BUYER") and XXXXX OIL COMPANY, a Colorado general
partnership whose address and principal place of business is at 0000 Xxxxxx xx
xxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 ("SELLER"). BUYER and SELLER are
each a "Party" to this Purchase Agreement and are sometimes collectively
referred to hereinafter as the "Parties."
INTRODUCTION
BUYER wishes to purchase the Aircraft from SELLER on the terms and
conditions described in this Purchase Agreement; and
SELLER is willing to sell the Aircraft to BUYER on the terms and
conditions described in this Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, SELLER and BUYER
hereby agree as follows:
ARTICLE 1
DEFINITIONS
Except where the context otherwise requires, the following words have
the following meanings for all purposes of this Purchase Agreement. The
definitions are equally applicable to the singular and plural forms of the
words. Any agreement defined below includes each amendment, modification,
supplement and waiver thereto in effect from time to time.
"Act" means part A of subtitle VII of title 49, United States Code.
"Aircraft" means, one used Boeing 727-44 aircraft, including
collectively, the Airframe, the Engines, the Parts and the Aircraft Documents,
as more specifically described on Exhibit A hereto.
"Aircraft Xxxx of Sale" means the warranty xxxx of sale covering the
Aircraft delivered by the SELLER to the BUYER on the Closing Date in the form of
Exhibit B hereto.
"Aircraft Documents" means all technical data, manuals (avionics,
operating or otherwise)_ and log books, and all inspection, modification and
overhaul records and other service, repair, maintenance and technical records
that are usual and customary with regard to the Aircraft or required by the FAA
or the Maintenance Program to be maintained by the SELLER with respect to the
Aircraft, Airframe, Engines Parts, including avionics; and such term shall
include all additions, renewals, revisions and replacements of any such
materials from time to time made or required to be made by the SELLER in
accordance with the Maintenance Program
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or the FAA Regulations, and in each case in whatever form and by whatever means
or medium (including, without limitation, microfiche, microfilm, paper or
computer disk). To the extent such manuals are not otherwise complete, SELLER
will furnish copies of any replacement pages or documents; provided, however,
that if such replacements have been ordered, Closing will not be delayed in the
event said replacement documents have not been received as of the Closing Date.
"Airframe" means the airframe described in Exhibit A together with all
Parts relating thereto (except the Engines or engines).
"Airframe Manufacturer" means Boeing.
"Aviation Authority" means the FAA.
"Date of Execution" means the date on which Seller executes this
Purchase Agreement.
"Delivery" means the tender for sale of the Aircraft by SELLER to
BUYER and BUYER's purchase of the Aircraft from Seller in accordance with this
Purchase Agreement.
"Closing Date" means the date on which the Closing takes place.
"Deposit" means the sum of five hundred thousand dollars ($500,000.00)
which BUYER shall deposit into the Escrow Agent's Escrow Account immediately
upon the Date of Execution.
"Discrepancy" means any faulty condition, malfunction or failure of
performance of any material Aircraft component (including the Airframe and
Engines) or operating system necessary for safety and airworthiness that fails
to meet the respective manufacturer's safety or performance specifications or
any applicable law or regulation of any Governmental Entity; provided, however,
that "Discrepancy" shall not include any cosmetic flaw or malfunction or failure
of performance of any equipment or system that meets the manufacturer's safety
or performance specifications or any applicable law or regulation of any
Governmental Entity; and, provided, further, that "Discrepancy" shall not
include any condition, malfunction or failure of performance of any equipment
whatsoever resulting from any actions caused or authorized by BUYER on or after
the Execution Date which affect the Aircraft; and, provided, further, that in
the event of any dispute between BUYER and SELLER with regard to whether a
condition, defect or malfunction qualifies as a "Discrepancy" for purposes of
this Agreement, said dispute shall be resolved by the manufacturer of said
component or operating system whose decision shall be final and binding.
"Dollars" and "$" means the lawful currency of the United States.
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"Engine" means (i) each of the engines listed on Exhibit A or any
other engines which SELLER and BUYER agree in writing will be substituted
therefor and (ii) all Parts installed or incorporated in or on any of such
engines at Delivery.
"Engine Manufacturer" means Xxxxx & Xxxxxxx.
"Escrow Account" shall mean the Aero-Space Reports Trust Account No.
__________ at ___________ Bank of Oklahoma City.
"Escrow Agent" shall mean Aero-Space Reports of Oklahoma City,
Oklahoma, attention, Xxxx Xxxxxxx.
"Event of Loss" means, with respect to the Aircraft, Airframe or any
Engine, any of the following circumstances, conditions or events with respect to
such property, for any reason whatsoever:
(a) the destruction of such property, damage to such property beyond
practical or economic repair or rendition of such property
permanently unfit for normal use;
(b) the actual or constructive total loss of such property or any
damage to such property, or requisition of title or use of such
property, which results in an insurance settlement with respect
to such property on the basis of a total loss or constructive or
compromised total loss;
(c) any loss of such property or loss of use of such property for a
period of 60 days or more as a consequence of any theft,
hijacking or disappearance of such property; or
(d) any seizure, condemnation, confiscation, taking or requisition of
title to such property by any Government Entity or purported
non-U.S. Government Entity.
"FAA" means the Federal Aviation Administration of the United States
or any Government Entity succeeding to the functions thereof.
"FAA Xxxx of Sale" means an aircraft xxxx of sale for the Aircraft on
FAA AC Form 8050-2 (or such other form as may be approved by the FAA).
"FAA Regulations" means the Federal Aviation Regulations issued or
promulgated pursuant to the Act from time to time.
"Government Entity" means any (i) federal, state or local government,
(ii) board, commission, department, division, instrumentality, court, agency or
political subdivision thereof
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and (iii) association, organization or institution of which any thereof is a
member or to whose jurisdiction any thereof is subject or in whose activities
any thereof is a participant.
"Law" means any (i) statute, decree, constitution, regulation, order
or any directive of any Government Entity, (ii) treaty, pact, compact or other
agreement to which any Government Entity is a signatory or party and (iii)
judicial or administrative interpretation or application.
"Lien" means any mortgage, pledge, lien, charge, claim, encumbrance,
lease or security interest affecting the title to or any interest in property.
"Maintenance Program" means the Xxxxxxx maintenance program, under
SELLER's Boeing approved low utilization maintenance program as approved by the
FAA, pursuant to which the SELLER maintains the Aircraft.
"Part" means any part, component, appurtenance, appliance, module,
accessory, instrument (including avionics), communications equipment,
furnishing, module, SELLER-furnished equipment or other item of equipment (other
than complete Engines or engines) installed in or attached to the Airframe, any
Engine or the APU.
"Person" means any individual, firm, partnership, joint venture,
trust, corporation, Government Entity, committee, department, authority or any
body, incorporated or unincorporated, whether having distinct legal personality
or not.
"Purchase Agreement" means this Aircraft Purchase Agreement, together
with all Exhibits hereto.
"State of Registration" means the United States.
"United States" or "U.S." means the United States of America.
ARTICLE 2
SALE AND PURCHASE
2.1. Sale and Purchase. Subject to the terms and conditions set forth in
this Purchase Agreement, SELLER hereby agrees to sell and transfer to BUYER and
BUYER agrees to purchase the Aircraft, free and clear of all Liens, except
Liens, if any, which have attached or may attach as a result of actions caused
by BUYER on or after the Execution Date.
2.2. Scheduled Closing Date. The closing of the Aircraft by BUYER from
SELLER is scheduled to occur on or about October 22, 2002 (the "Scheduled
Closing Date").
2.3. Event of Loss Prior to Delivery. If an Event of Loss occurs prior to
Delivery, neither party will have any further liability to the other; provided,
however, that SELLER will return the Deposit to BUYER with the exception of any
portion of the Deposit which may be
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necessary to satisfy any Lien that attaches to the Aircraft as a result of any
action caused or authorized by BUYER on or after the Execution Date or to
satisfy any unpaid costs for a modification or loss occasioned by Buyer's work
on the Aircraft prior to Closing.
2.4. Damage to Aircraft. If prior to the Closing Date the Aircraft incurs
major structural damage which is reasonably determined to diminish the value of
the Aircraft, BUYER may elect without penalty, to terminate this Purchase
Agreement, in which case SELLER will return the Deposit to BUYER with the
exception of any portion of the Deposit which may be necessary to satisfy any
Lien that attaches to the Aircraft as a result of any action caused or
authorized by BUYER on or after the Execution Date, or to satisfy any unpaid
costs for a modification or loss occasioned by Buyer's work on the Aircraft
prior to Closing.
2.5. Failure or Delay in Performance. SELLER shall not be liable for any
failure of or delay in delivery of the Aircraft if such failure or delay is due
to acts or God, Aviation Authority, Government Entity or public enemy, civil
war, insurrection, or riots; fire or explosions; or accidents, strikes or labor
disputes for a period of sixty (60) days from the date of this Purchase
Agreement. Seller shall not be liable for any failure of or delay in delivery of
the Aircraft occasioned in whole or in part by Buyer's work on the Aircraft. In
any of said events or if SELLER is unable to deliver the Aircraft in the
condition described in this Purchase Agreement, this Purchase Agreement shall
terminate and be of no further force or effect and the Deposit shall be promptly
returned by SELLER to BUYER with the exception of any portion of the Deposit
which may be necessary to satisfy any Lien that attaches to the Aircraft as a
result of any action caused or authorized by BUYER on or after the Execution
Date to pay for any unpaid work on the Aircraft, or work necessary to return the
Aircraft to the condition it was in prior to Buyer commencing any work on the
Aircraft.
ARTICLE 3
PURCHASE PRICE AND PAYMENT
3.1. Purchase Price. The purchase price for the Aircraft is three million,
five hundred thousand dollars (US $3,500,000) (the "Purchase Price"), due in
full at Closing
3.2. Escrow Account. In view of SELLER's agreement to enter into this
Agreement and to take the Aircraft off the market, within one (1) business day
after the Date of Execution of this Agreement, BUYER will deposit the amount of
the Purchase Price into the Escrow Account pursuant to the terms of a mutually
agreeable Escrow Agreement among BUYER, SELLER and the Escrow Agent.
Concurrently with SELLER'S execution of this Agreement, BUYER is providing
SELLER with evidence that the full amount of the Purchase Price is being held in
escrow with Xxxxxxxxx & Xxxxxxxxx L.L.P. pending transfer to the Escrow Agent.
3.3 Deposit
The Deposit shall be applied to and shall be a credit against BUYER's
obligation for payment of the Purchase Price on the Closing Date; provided,
however, that the Deposit shall be
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deemed to be refundable only as expressly provided in this Agreement and shall
be subject to release from the Escrow Account upon the direction of the SELLER
to the extent necessary to satisfy any Lien that attaches to the Aircraft as a
result of any action caused or authorized by BUYER on or after the Execution
Date, which Lien is not otherwise satisfied by BUYER on the Closing Date, or any
cost to return the Aircraft to the condition it was in prior to BUYER commencing
work on the Aircraft. BUYER shall remain obligated to pay the full Purchase
Price as set forth herein to SELLER at Closing, notwithstanding any release of
the Deposit or any portion thereof for the purpose of satisfying any Lien or
contract right of any third party acting by or on behalf of the BUYER.
3.3. 3.4 Payment of Purchase Price On or before 12:00 noon (Oklahoma City
time) on the Closing Date, upon receipt of notice from Seller that it is in
possession of all closing documents, Escrow Agent shall deliver the Purchase
Price by wire transfer to such bank account as SELLER shall designate.
ARTICLE 4
AIRCRAFT FLIGHT CHARGES
4.1. Flight Charges. Prior to Delivery and in order to give BUYER title to
the Aircraft free and clear of all Liens, SELLER will have paid or will pay all
en route navigation charges, navigation service charges and all other charges
due and payable by SELLER for the use of or for services provided at any airport
with respect to the Aircraft with the exception of any costs incurred in any
flight after the Execution Date and on or before the Closing Date. To the extent
on the Closing Date any such charges have not been billed by an airport or other
Person, SELLER will pay such charges immediately upon receipt of notice of the
amount owed. Following Delivery and so long as the Aircraft bears the FAA
Registration Number N44MD, BUYER shall hold SELLER harmless from any en route
navigation charges, navigation service charges and all other charges due and
payable by BUYER for the use of or for services provided at any airport with
respect to the Aircraft.
ARTICLE 5
CONDITION OF AIRCRAFT AT DELIVERY
5.1. BUYER Inspection of Aircraft. Prior to actual tender of the Aircraft
from SELLER to BUYER for acceptance, BUYER or BUYER's representatives will have
a full opportunity to inspect the Aircraft and Aircraft Documents. Unless
otherwise agreed to in writing by the parties, any Discrepancy from the required
condition at Delivery set forth in Article 5.3 will either be deducted from the
Purchase Price or corrected by SELLER at its cost prior to Delivery; provided,
however, that SELLER shall have the right to terminate this Purchase Agreement
and return BUYER'S Deposit to BUYER in the event the results of the BUYER's
inspection identify a Discrepancy or Discrepancies which, in the aggregate,
would cost more than two hundred fifty thousand dollars ($250,000.00) to repair.
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5.2. Demonstration Flight. Upon completion of the inspections described in
Articles 5.1 and 5.4 of this Purchase Agreement and the correction of any
Discrepancy found during such inspections required to bring the Aircraft into
compliance with Article 5.3 of this Purchase Agreement, SELLER will at BUYER's
request conduct a test flight of the Aircraft for BUYER or BUYER's
representatives in accordance with Airframe Manufacturer's standard flight
operation check flight procedures for a period not to exceed one (1) hour.
Flight costs and fuel will be furnished by and at the expense of BUYER. Unless
otherwise agreed in writing by the parties, any Discrepancy from the required
condition at Delivery set forth in Article 5.3 will be corrected by SELLER at
its cost prior to Delivery.
5.3. Condition of Aircraft. On the Closing Date, the conditions set forth
in this Article 5.3 will be met:
5.3.1. As of September 30, 2002, the Airframe and Engines had the
total times and hours and cycles status set forth in Exhibit A.
5.3.2. The Aircraft will possess a current Airworthiness Certificate
issued by the FAA.
5.3.3. All material Aircraft equipment, components and operating
systems (which, for purposes of this Agreement are understood to those systems
which are necessary for safety and airworthiness), will be operating in
accordance with their intended use and within limits approved by the Airframe
Manufacturer, the Engine Manufacturer and the FAA.
5.3.4. During the period of SELLER's ownership of the Aircraft, the
Aircraft, Airframe, Engines, Parts and Aircraft Documents will have been
maintained and repaired in accordance with the Maintenance Program and the rules
and regulations of the FAA.
5.3.5.
5.3.6. During the period of SELLER'S ownership of the Aircraft, SELLER
has and will have maintained and repaired the Aircraft in the same manner and
with the same care as a prudent owner and operator of similar aircraft and
engines would maintain and repair its aircraft.
5.3.7. SELLER shall comply with all airworthiness directives of the
FAA regarding the Aircraft that have been issued and are then in force and
effect as of the Date of Execution.
(a) SELLER will have incorporated in the Aircraft all mandatory
and airworthiness related service bulletins of Airframe Manufacturer, Engine
Manufacturer and other vendors that have been issued and are then in force and
effect as of the Date of Execution.
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5.3.8. All Aircraft Documents pertaining to the time during which
SELLER has owned the Aircraft will be in English, complete, accurate, up-to-date
and in a condition which complies with the requirements of the FAA, including
records of the number of hours and cycles on the Airframe and Engines and all
maintenance and repairs performed on the Aircraft.
5.3.9. To the best of SELLER's knowledge, the Aircraft will not have
suffered any substantial damage or failure which adversely affects the
structural strength, performance or flight characteristics of the Aircraft and
which would normally receive major repair. Any such damage or failure shall have
been repaired, corrected and restored to an airworthy condition and to within
FAA and manufacturer specifications as of the Delivery except for damage to the
Aircraft occasioned by BUYER's work on the Aircraft for which BUYER shall be
solely responsible and liable.
5.3.10. The Aircraft will be free and clear of all Lien and rights of
others, except Liens, if any, which have attached or may attached as a result of
actions caused or authorized by BUYER on or after the Execution Date.
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5.3.12 DISCLAIMER OF WARRANTIES AS TO AIRCRAFT CONDITION.
WITH THE SOLE EXCEPTION OF THE EXPRESS WARRANTIES SET FORTH
HEREINABOVE, THE AIRCRAFT IS SOLD "AS IS, WITH ALL FAULTS." SELLER MAKES NO
WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO MERCHANTABILITY OR
FITNESS APPLICABLE TO AIRCRAFT OR ANY EQUIPMENT APPLICABLE THERETO. BUYER
AGREES THAT NO WARRANTY HAS BEEN EXPRESSED OR IMPLIED BY SELLER OR ANY OF
SELLER'S REPRESENTATIVES. BUYER FURTHER AGREES THAT IT HAS HAD AN
OPPORTUNITY TO INSPECT THE AIRCRAFT, ITS OPERATING SYSTEMS, ITS LOGBOOKS
AND RECORDS, THAT SAID INSPECTION HAS BEEN CONDUCTED TO BUYER'S
SATISFACTION AND, ACCORDINGLY, BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES
THAT THE AIRCRAFT IS BEING PURCHASED "AS IS." BUYER HEREBY EXPRESSLY WAIVES
ANY CLAIM FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES
RESULTING IN PERSONAL INJURY, AGAINST SELLER OR SELLER'S REPRESENTATIVES.
5.4. Pre-Delivery Evaluation. SELLER hereby consents to allow, prior to the
Closing Date, a pre-Closing evaluation of the Aircraft to be performed by such
company as BUYER, in its sole discretion, may select. The nature and extent of
such inspection shall be consistent with customary aviation industry practice
and shall be subject to SELLER's prior approval, but such approval shall not be
unreasonably withheld. Said pre-Closing evaluation shall be conducted at BUYER's
sole cost and expense. Further, SELLER shall permit BUYER to remove the interior
of the Aircraft following the execution of this Agreement by both Parties and
BUYER'S payment into the Escrow Account of the Deposit. SELLER shall provide
reasonable cooperation with such evaluation, including, without limitation,
making the Aircraft available for such inspection at its current location (or
such other location as BUYER may reasonably request) and by executing any
necessary consents and/or other documentation relating thereto; provided,
however, that BUYER will bear responsibility for all costs of any relocation of
the Aircraft to any site other than its location on the Execution Date. BUYER
will reimburse SELLER for and will indemnify and hold SELLER harmless from the
cost of such interior removal.
5.5. Maintenance Logs. SELLER shall, within five days after the execution
of this Agreement, provide to BUYER current, updated maintenance logs on the
Aircraft in accordance with the Xxxxxxx Maintenance Program, including records
with respect to current C-5 and C-6 inspections.
5.6. Inspection Report. SELLER shall, on or before October 18, 2002, obtain
and provide to BUYER a copy of the most recent pre-purchase inspection report on
the Aircraft. BUYER shall pay the cost of obtaining such inspection report not
to exceed seven thousand dollars ($7,000.00).
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5.7. Evidence of Authority. Concurrently with its execution of this
Agreement, SELLER will provide BUYER with evidence of the authority of the
person signing this Agreement on behalf of SELLER to bind SELLER.
ARTICLE 6
XXXX OF SALE AND OTHER DOCUMENTARY REQUIREMENTS
6.1. Conditions to BUYER's Obligations. The following will be conditions
precedent to BUYER's obligation to accept Delivery of the Aircraft from SELLER
(it being understood that delivery of such documents by SELLER is subject to
satisfaction of or waiver of the conditions set forth in Article 6.2):
(a) At Delivery, the Aircraft will be in the condition described
in Exhibit A and Article 5.3.
(b) SELLER will have delivered and warranted to BUYER good and
marketable title to the Aircraft, free and clear of all Liens whatsoever, except
Liens, if any, which have attached or may attached as a result of actions caused
or authorized by BUYER on or after the Execution Date. SELLER will deliver to
BUYER the Aircraft Xxxx of Sale in the form of Exhibit B and the FAA Xxxx of
Sale evidencing this transfer of title.
(c) SELLER will have delivered to BUYER an assignment of Airframe
Manufacturer and Engine Manufacturer rights in the form and substance of Exhibit
C.
(d) SELLER will have delivered to BUYER copies of documents
reasonably acceptable to BUYER and consistent with aviation industry practice,
evidencing SELLER's full and marketable title to the Aircraft, free and clear of
all liens and encumbrances.
(e) SELLER will have delivered to BUYER written confirmation of
SELLER'S General Partner authorizing the SELLER's execution and full performance
of this Purchase Agreement, the Aircraft Xxxx of Sale, the FAA Xxxx of Sale and
all other documents and actions required hereunder, and an incumbency
certificate setting forth the officers or agents of SELLER authorized to execute
this Purchase Agreement, the Aircraft Xxxx of Sale, the FAA Xxxx of Sale and all
other documents required hereunder.
(f) SELLER will have delivered a certificate signed by an
attorney-in-fact of SELLER stating all of the following:
(1) The representations and warranties contained in Article
10 are true and accurate on and as of the Closing Date as though made on and as
of such date (except to the extent that such representations and warranties
relate solely to an earlier date).
(2) No default by SELLER exists under this Purchase Agreement
as of the Closing Date.
(3) SELLER has paid all airport charges with respect to the
Aircraft in accordance with Article 4.1.
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(g) The pre-Delivery evaluation described in Article 5.4 of this
Purchase Agreement shall have been completed, and the results of such
pre-Delivery evaluation shall demonstrate that the Aircraft is in compliance
with the requirements of Article 5.3 of this Purchase Agreement.
(h) BUYER shall have received lien search results reasonably
satisfactory to BUYER from the Escrow Agent, and such other jurisdiction as
BUYER shall reasonably require regarding the Aircraft and the SELLER. SELLER
will have delivered to BUYER evidence that any financing arrangements relating
to the Aircraft, including, without limitation, those with GE Credit
Corporation, have been terminated. Such evidence may include, without
limitation, executed bills of sale (including FAA Bills of Sale), other executed
transfer documents, executed lease terminations, executed mortgage releases for
filing with the FAA and/or executed Form UCC-3 termination statements for filing
in the appropriate jurisdiction(s) pursuant to the Uniform Commercial Code.
(i) All Aircraft Documents and current standard FAA Certificate
of Airworthiness shall be on board the Aircraft unless alternative delivery
arrangements are agreed to by the parties.
(j) SELLER will have delivered such other documents as BUYER may
reasonably request.
6.2. Condition to SELLER's Obligations.
(a) The condition precedent to SELLER's obligation to deliver the
Aircraft to BUYER is that BUYER will have paid to SELLER the Purchase Price in
full and without reservation or offset and shall indemnify and hold SELLER
harmless from any claim or Lien which would otherwise attach to the Aircraft as
a result of actions caused or authorized by BUYER on or after the Execution
Date.
6.3. Closing. On the Closing Date, the Escrow Agent shall deliver the
Purchase Price to SELLER not later than 12:00 noon (Oklahoma City time). Upon
receipt of the Purchase Price, or a Fed reference number therefore), the Escrow
Agent shall record all documents delivered pursuant to Section 6.1 which are
necessary to convey title to the Aircraft to BUYER, free and clear of all Liens
and deliver all other documents described in Section 6.1 to BUYER and all
documents described in Section 6.2 to SELLER. All transactions shall be deemed
to have occurred on the Closing Date simultaneously. Upon Delivery and the
filing of the FAA Xxxx of Sale and of the releases of all Liens on the Aircraft
with the FAA Registration Office in Oklahoma City and any applicable state
filing office, BUYER shall immediately deliver or cause to be delivered to
SELLER the Aircraft Delivery and Acceptance Certificate in the form of Exhibit
D.
6.4. Risk of Loss. Title to and risk of loss or damage to the Aircraft will
pass from SELLER to BUYER on the Closing Date upon satisfaction of the
conditions set forth in Articles 6.1 and 6.2 and BUYER's acceptance of delivery
of the Aircraft, which shall be evidenced by the concurrent delivery to SELLER
by BUYER's representative of an Aircraft Delivery and Acceptance Certificate in
the form of Exhibit D hereto.
3
6.5. `Limitation on Solicitation. So long as Buyer is not in default of
this Purchase Agreement, Seller will not solicit offers for, or otherwise
negotiate the sale of, the Aircraft, other than negotiations with Buyer in
connection with the transactions contemplated by this Agreement.
1. 6.6 BUYER's Failure to Accept Delivery of the Aircraft.
BUYER agrees that if, for any reason, BUYER has not accepted Delivery of
the Aircraft within seven (7) days from the Closing Date and SELLER has
otherwise complied with its obligations under this Agreement, SELLER shall have
the right to effect the sale of the Aircraft to any third party in such manner
as it may deem advisable, free and clear of any claim for damages of any kind or
character whatsoever which BUYER, or any other persons claiming under or through
BUYER, may have arising out of such sale. In addition, it is agreed that SELLER
may retain the Deposit paid in connection with the purchase price as liquidated
damages by reason of BUYER's failure to accept Delivery.
ARTICLE 7
SELLER ASSIGNMENT OF RIGHTS AND WARRANTIES
7.1. Assignable Warranties. Except as set forth in Article 7.2, at
Delivery, SELLER will assign to BUYER any assignable warranties and indemnities
given the SELLER by Airframe Manufacturer, Engine Manufacturer and other vendors
with respect to the Aircraft, including any rights which may have accrued prior
to Delivery but which have not been fully exercised by SELLER.
7.2. Non-Assignable Warranties. To the extent that any warranty or
indemnity given to SELLER by Airframe Manufacturer, Engine Manufacturer and
others with respect to the Aircraft cannot be assigned, BUYER will be entitled
to take such action to enforce such warranty or indemnity in the name of SELLER
against Manufacturer and such other parties as SELLER sees fit, but subject to
BUYER's first ensuring that SELLER is indemnified and secured to SELLER's
satisfaction against all losses, damage, costs, expenses and liabilities thereby
incurred or to be incurred.
ARTICLE 8
EXPENSES AND TAXES
8.1. Costs and Expenses of Sale.
(a) SELLER shall be responsible for paying SELLER's broker fees
to Wentworth & Associates for services in connection with the sale and transfer
of ownership of the Aircraft which shall be payable out of the proceeds of the
sale.
(b) SELLER shall also be responsible for all fees and expenses of
SELLER's counsel in connection with the negotiation, execution, closing,
delivery, amendment, and enforcement of this Agreement.
4
(c) BUYER shall be responsible for paying BUYER's broker's fees
and all fees and expenses of BUYER's counsel in connection with the negotiation,
execution, closing, delivery, amendment, and enforcement of this Agreement.
(d) BUYER and SELLER agree to share equally all FAA recording
fees and all Escrow Agent fees and costs in connection with the filing of
documents with the FAA upon closing of the purchase and sale of the Aircraft;
provided, however, that the purchase of a policy of title insurance or the
obtaining of a legal opinion of counsel as to title is solely a matter of
BUYER's discretion and any premium or other costs associated with the
procurement of such a policy or opinion of counsel shall be at BUYER's sole cost
and expense. They agreed to pay.
8.2. Taxes. BUYER shall do all things necessary to obtain exemption from
any and all taxes, excises, duties and assessments whatsoever, including,
without limitation, sales, use and similar taxes arising solely out of the sale
and delivery of the Aircraft in any manner levied, assessed or imposed by the
State of Delaware or any other jurisdiction and BUYER hereby agrees to
indemnify, defend and hold SELLER harmless from liability for any and all such
taxes, excises, duties and assessments.
8.3. After-Tax Basis. The amount which either BUYER or SELLER is required
to pay with respect to any taxes indemnified against under Articles 8.2 or 9.1,
as applicable, is an amount sufficient to restore BUYER or SELLER on an
after-tax basis to the same position BUYER or SELLER would have been in had such
taxes not been incurred.
8.4. Timing of Payment. Any amount payable to BUYER or SELLER pursuant to
this Article 8 or Article 9.1, as applicable, will be paid within ten (10) days
after receipt of a written demand therefor from BUYER or SELLER accompanied by a
written statement describing in reasonable detail the basis for such indemnity
and the computation of the amount so payable; provided, however, that such
amount need not be paid by SELLER or BUYER prior to the earlier of (i) in the
case of taxes not being contested by SELLER or BUYER, the date any tax is
payable to the appropriate Government Entity or taxing authority or (ii) in the
case of amounts which are being contested by BUYER or SELLER in good faith, the
date such contest is finally resolved.
ARTICLE 9
RETAINED LIABILITIES OF seller
9.1. Retained Liabilities of SELLER. Subject to the disclaimer of
warranties set forth in subsection 5.3.12 hereof and with the exception any
claim or Lien which would otherwise attach to the Aircraft as a result of
actions caused or authorized by BUYER on or after the Execution Date, SELLER
will retain all of the liabilities and obligations relating to SELLER's
maintenance, operation, use, storage and ownership of the Aircraft prior to
Closing (the "Retained Liabilities"). Any invoices, assessments, claims or
similar documents for such Retained Liabilities may be sent directly by the
claiming party to SELLER for payment. Any such expenses incurred by BUYER
arising from Retained Liabilities shall be reimbursed by SELLER to BUYER
promptly upon receipt of a request for reimbursement.
5
9.2. Notice. BUYER and SELLER will give prompt written notice one to the
other of any liability of which such party has knowledge for which SELLER is, or
may be, liable under Article 9.1; provided, however, that failure to give such
notice will not terminate any of the rights of BUYER under this Article 9 except
to the extent that SELLER has been materially prejudiced by the failure to
provide such notice.
9.3. Refunds. If BUYER obtains a recovery of all or any part of any amount
which SELLER has paid to BUYER, BUYER will pay to SELLER the net amount
recovered by BUYER.
9.4. Defense of Claims. Promptly after receipt by BUYER of notice of any
claim, or the commencement of any action arising from any Retained Liabilities,
BUYER will give SELLER written notice of such claim or the commencement of such
action (a "Notice of Claim"), but the failure to provide such Notice of Claim in
a given situation shall not affect the obligation of the SELLER except to the
extent that SELLER may be materially prejudiced as a result of such failure.
Upon receipt of Notice of Claim, SELLER will be entitled at its expense to
defend by counsel of its own choosing any action or claim, either in SELLER's
name or in BUYER's name, and SELLER shall have full control over the defense of
such action or claim, including, without limitation, the ability to settle or
compromise any such action or claim without the prior written consent of BUYER;
provided that SELLER consults with BUYER prior to agreeing to any such
settlement. If such claim is asserted against or may adversely affect BUYER or
acts as a Lien against or may adversely affect the Aircraft, BUYER will be
entitled at any time to participate in any and all aspects of any such action or
claim, with counsel of its own choosing and its own cost and expense, and SELLER
agrees to cooperate with such counsel. If SELLER shall not within sixty (60)
days after the date of any Notice of Claim given by BUYER to SELLER serve a
return notice indicating or stating that it shall take over the defense of any
action or claim as hereinafter provided, such failure to give return notice
within the time specified shall be deemed an election by SELLER not to take over
the defense of such action or claim.
ARTICLE 9-B
INDEMNIFICATION AND INSURANCE BY BUYER.
BUYER shall indemnify and hold harmless SELLER from any claims, actions,
damages, losses, costs or expenses (including attorneys' fees and disbursements)
that are or may be asserted in the future caused by or arising out of, in whole
or in part, BUYER's operation, maintenance, possession, storage, use or
ownership of the Aircraft and relating to any period subsequent to the Date of
Execution.
Following the Closing, and during the period of BUYER's ownership of the
Aircraft, BUYER shall name SELLER as an additional named insured on BUYER's
policy of general aviation liability insurance. If the addition of SELLER as a
named insured on BUYER's policy results in any increase in premium to BUYER,
SELLER will have the option to pay the resulting increase in premium or agree to
its removal as an additional name insured from the policy.
6
ARTICLE 10
WARRANTIES AND COVENANTS OF SELLER
SELLER represents and warrants to BUYER the following:
10.1. Corporate Status. SELLER is a general partnership , validly existing
and in good standing under the Laws of the State of Colorado ______________. It
has the legal power and authority to carry on its business as presently
conducted and to perform its obligations hereunder.
10.2. Governmental Approvals. Except as set forth in this Purchase
Agreement, no authorization, approval, consent, license or order of, or
registration with, or the giving of notice to the FAA or any other Government
Entity is required for the valid authorization, execution, delivery and
performance by the SELLER of this Purchase Agreement.
10.3. Binding. This Purchase Agreement has been duly authorized, executed
and delivered by SELLER and is a valid, enforceable and binding obligation of
SELLER except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other Laws of general application affecting the enforcement of
creditors' rights.
10.4. No Breach. The execution and delivery of this Purchase Agreement, the
consummation by SELLER of the transactions contemplated herein and compliance by
SELLER with the terms and provisions hereof do not and will not contravene any
Law applicable to SELLER, or result in any breach of or constitute any default
under or result in the creation of any Lien upon any property of SELLER,
pursuant to any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, bank loan or credit agreement, corporate charter, by
law or other agreement or instrument to which SELLER is a party.
10.5. Filings. Except for matters described in Article 6.1(i) and except
for any filing or recording that may be required under the Act or the Federal
Aviation Regulations, no filing or recording of any instrument or document is
necessary under the Laws of the State of Registration, the State of Texas or any
other applicable jurisdiction in order to accomplish the sale of the Aircraft to
BUYER hereunder. Nothing contained herein shall be understood to constitute a
warranty as to the right of BUYER to export the Aircraft from the United States
of America, deregister the Aircraft with the FAA, file or record any instrument
or register the Aircraft under the jurisdiction of any country other than the
United States of America.
10.6. Licenses. SELLER holds all licenses, certificates and permits from
applicable Government Entities in the State of Registration necessary for the
performance of its obligations under this Purchase Agreement.
10.7. No Suits. There are no suits or proceedings pending or threatened
against SELLER before any court or administrative agency against or affecting
SELLER which, if adversely determined, would have a material adverse effect on
SELLER's ability to perform its obligations under this Purchase Agreement.
10.8. General Obligations. The obligations of SELLER under this Agreement
are direct, general and unconditional obligations of SELLER and rank or will
rank at least pari passu with all other present and future unsecured and
unsubordinated obligations (including contingent
7
obligations) of SELLER, with the exception of such obligations as are
mandatorily preferred by law and not by reason of any encumbrance.
10.9. Title to Aircraft. On the Closing Date, SELLER will have good and
valid title to the Aircraft to transfer to BUYER, free and clear of all Liens
and will indemnify and defend BUYER in respect of any claims, losses, costs,
expenses, charges or liabilities arising out of any defect in SELLER's title.
10.10. Accuracy of Information Contained in Exhibit A. The information
contained in Exhibit A attached hereto is true, correct and accurate as of the
date hereof.
The representations and warranties contained in this Article 10
shall survive the Closing Date.
ARTICLE 11
WARRANTIES AND COVENANTS OF BUYER
BUYER represents and warrants to SELLER the following:
11.1. Status. BUYER is a corporation, duly organized, validly existing and
in good standing under the Laws of the State of Delaware. It has the
organizational power and authority to carry on its business as presently
conducted and to perform its obligations hereunder.
11.2. Government Approvals. No authorization, approval, consent, license
or order of, or registration with, or the giving of notice to any United States
Government Entity is required for the valid authorization, execution, delivery
and performance by the BUYER of this Purchase Agreement.
11.3. Binding. This Purchase Agreement has been duly authorized, executed
and delivered by BUYER and is a valid, enforceable and binding obligation of
BUYER except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other Laws of general application affecting the enforcement of
creditors' rights.
11.4. No Breach. The execution and delivery of this Purchase Agreement,
the consummation by BUYER of the transactions contemplated herein and compliance
by BUYER with the terms and provisions hereof do not and will not contravene any
Law applicable to BUYER, or result in any breach of or constitute any default
under any indenture, mortgage, chattel mortgage, deed of trust, conditional
sales contract, bank loan or credit agreement, corporate charter, bylaw or other
agreement or instrument to which BUYER is a party or by which BUYER or its
properties or assets may be bound or affected.
11.5. Licenses. BUYER holds all licenses, certificates and permits from
applicable Government Entities necessary for the performance of its obligations
under this Purchase Agreement.
11.6. No Suits. There are no suits or proceedings pending or threatened
against BUYER before any court or administrative agency against or affecting
BUYER which, if
8
adversely determined, would have a material adverse effect on BUYER's ability to
perform his obligations under this Purchase Agreement.
11.7. General Obligations. The obligations of BUYER under this Agreement
are direct, general and unconditional obligations of BUYER and rank or will rank
at least pari passu with all other present and future unsecured and
unsubordinated obligations (including contingent obligations) of BUYER, with the
exception of such obligations as are mandatorily preferred by law and not by
reason of any encumbrance.
11.8. Filings. Except for any filing or recording that may be required
under the Act or the Federal Aviation Regulations, no filing or recording of any
instrument or document is necessary under the Laws of the State of Registration,
the State of Texas or any other applicable jurisdiction in order to accomplish
the sale of the Aircraft to BUYER hereunder.
The representations and warranties contained in this Article 11 shall
survive the Closing Date.
ARTICLE 12
ASSIGNMENT
12.1. Sale or Assignment by BUYER. Subject to the terms and conditions of
this Purchase Agreement, BUYER may at any time assign its rights and obligations
regarding the purchase of the Aircraft hereunder to any Person ("BUYER's
Assignee") and BUYER shall thereafter be relieved of its liabilities and
obligations hereunder, provided, that BUYER's Assignee is an affiliated entity
or trust of BUYER and the full amount of the Purchase Price remains in the
Escrow Account.
12.2. SELLER Cooperation. On request by BUYER or BUYER's Assignee, and at
no cost to SELLER, SELLER will execute any documents (such as an assignment
agreement) as BUYER or BUYER's Assignee may reasonably require in connection
with any such assignment by BUYER to BUYER's assignee.
12.3. Protections. Wherever the term "BUYER" is used in this Purchase
Agreement in relation to any of the provisions relating to indemnity contained
in Articles 4, 9 and 15.1, the term "BUYER" will be deemed to include BUYER's
Assignee, if applicable.
ARTICLE 13
NOTICES
13.1. Manner of Sending Notices. Any notice required or permissible under
this Purchase Agreement will be in writing. Notices will be delivered in person
(or courier) or sent by facsimile, or a letter (mailed certified and return
receipt requested), addressed to the parties as set forth in Article 13.2. In
the case of delivery in person, by courier or facsimile, notice will be deemed
received upon actual receipt. In the case of a mailed letter, notice will be
deemed received on the third (3rd) day after mailing.
13.2. Notice Information. Notices will be sent:
9
If to SELLER: Xxxxx Oil Company
2121 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
With a copy to: Xxxxxxx X. Xxxxx
Xxxxxx & Partners
2828 Xxxxxx Xxxxxxx Xxxx Xxxxx
Xxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to BUYER: UBICS Holding Company
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Telephone:
Telecopier:
With a copy to: UBICS, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 000.000.0000
Telecopier:
or to such other places and numbers as either party directs in writing to the
other party.
ARTICLE 14
GOVERNING LAW AND JURISDICTION
14.1. Law. This Purchase Agreement has been made, executed and delivered in
the State of California and will be construed in accordance with and governed by
the laws of such state without regard to principles of conflicts of law.
14.2. Jurisdiction. The parties hereby consent to the exclusive
jurisdiction of any state or federal court located within the State of
California, and irrevocably agree that all actions or proceedings relating to
this Purchase Agreement will be litigated in such courts.
10
ARTICLE 15
MISCELLANEOUS
15.1. Rights of Parties. The rights of the parties hereunder are
cumulative, not exclusive, may be exercised as often as each party considers
appropriate and are in addition to its rights under general Law. The rights of
one party against the other party are not capable of being waived or amended
except by an express waiver or amendment in writing. Any failure to exercise or
any delay in exercising any of such rights will not operate as a waiver or
amendment of that or any other such right; any defective or partial exercise of
any such rights will not preclude any other or further exercise of that or any
other such right; and no act or course of conduct or negotiation on a party's
part or on its behalf will in any way preclude such party from exercising any
such right or constitute a suspension or any amendment of any such right.
15.2. Further Assurances. Each party agrees from time to time to do and
perform such other and further acts and execute and deliver any and all such
other instruments as may be required by Law or reasonably requested by the other
party to establish, maintain or protect the rights and remedies of the
requesting party or to carry out and effect the intent and purpose of this
Purchase Agreement.
15.3. Use of Word "including". The term "including" is used herein without
limitation and by way of example only.
15.4. Headings. All article and paragraph headings and captions are purely
for convenience and will not affect the interpretation of this Purchase
Agreement. Any reference to a specific article, paragraph or section will be
interpreted as a reference to such article, paragraph or section of this
Purchase Agreement.
15.5. Invalidity of any Provision. If any of the provisions of this
Purchase Agreement become invalid, illegal or unenforceable in any respect under
any Law, the validity, legality and enforceability of the remaining provisions
will not in any way be affected or impaired.
15.6. Time of the Essence. Time is of the essence in the performance of all
obligations of the parties under this Purchase Agreement.
15.7. Amendments in Writing. The provisions of this Purchase Agreement may
be amended or modified only by a writing executed by BUYER and SELLER.
15.8. Entire Agreement. This Purchase Agreement constitutes the entire
agreement between the parties in relation to the purchase of the Aircraft by
BUYER from SELLER and supersedes all previous proposals, agreements and other
written and oral communications in relation hereto. The parties acknowledge that
there have been no representations, warranties, promises, guarantees or
agreements, express or implied, except as set forth herein.
15.9. Counterparts. This Purchase Agreement may be executed in any number
of counterparts with the same effect as if all the signatures on such
counterparts appeared on one document, and each such counterpart shall be deemed
to be an original.
[Remainder of page intentionally left blank]
11
IN WITNESS WHEREOF, SELLER has caused this Purchase Agreement to be
executed by its duly authorized officer and BUYER has executed this Purchase
Agreement both as of the date and year first written above.
XXXXX OIL COMPANY
By /s/ Xxxxx Xxxxxxx
---------------------------------
Name Xxxxx Xxxxxxx
---------------------------------
Title _________________________________
UBICS HOLDING COMPANY
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name Xxxxxx X. Xxxxxxx
---------------------------------
Title President & CEO
---------------------------------
12
EXHIBIT A
AIRCRAFT DESCRIPTION
Airframe:
Airframe Manufacturer and Model: Boeing VIP 727-44
Airframe Manufacturer's Serial Number: 19318
Year of Manufacture: [_1967__________]
United States Registration Xxxx: N44MD
ENGINES:
Engine Manufacturer and Model: Xxxxx & Xxxxxxx JT8D-9A
Engine Manufacturer's Serial Numbers: 665625, 665839 and 664474
Year(s) of Manufacture: 0000
XXX:
APU Manufacturer and Model: Xxxxxxx XX CP-85-98
APU Manufacturer's Serial Number P15377
PARTS:
Any part, component, appurtenance, appliance, module, accessory,
instrument (including avionics), communications equipment, furnishing, module,
SELLER-furnished equipment or other item of equipment (other than complete
Engines or engines) installed in or attached to the Airframe, any Engine or the
APU.
AIRCRAFT DOCUMENTS:
All technical data, manuals and log books, and all inspection,
modification and overhaul records and other service, repair, maintenance and
technical records that are required by the FAA or the Maintenance Program to be
maintained by the SELLER with respect to the Aircraft, Airframe, Engines or
Parts; and such term shall include all additions, renewals, revisions and
replacements of any such materials from time to time made or required to be made
by the SELLER in accordance with the Maintenance Program or the FAA Regulations,
and in
A-1
each case in whatever form and by whatever means or medium (including, without
limitation, microfiche, microfilm, paper or computer disk).
OTHER INFORMATION:
Status of Airframe as of September 30, 2002:
Total hours 35,850 Total cycles 35,405
Status of Engines:
Serial Total Total
Position No. Hrs. Cycles
-------- --- ---- ------
Right 665625 43,997 36,819
Left 665839 34,366 25,540
Center 664474 42,123 35,405
A-2
EXHIBIT B
WARRANTY XXXX OF SALE
XXXXX OIL COMPANY ("Seller"), a partnership n organized under the laws
of the State of Colorado____________, is the owner of the full legal and
beneficial title to the following equipment, all as described in Exhibit "A" to
the Aircraft Purchase Agreement between Seller and UBICS HOLDING COMPANY
("Buyer") dated as of October __, 2002 (collectively, the "Aircraft"):
1. One Boeing 727-44 aircraft bearing United States registration xxxx
N44MD and manufacturer's serial number 19318.
2. Three (3) Xxxxx & Xxxxxxx JT8D-9A engines bearing manufacturer's
serial numbers 665625, 665839 and 664474.
3. All appliances, parts, instruments, appurtenances, accessories,
furnishings or other equipment or property installed in or attached to such
aircraft and engines.
4. All records and manuals applicable to such aircraft and engines.
For and in consideration of the sum of One United States Dollar (US$
1) and other valuable consideration, receipt of which is hereby acknowledged,
Seller does hereby sell, in an "as is, where is condition" grant, transfer,
sell, deliver and set over to Buyer and its successors and assignees forever all
of Seller's right, title and interest in and to the Aircraft, to have and to
hold the Aircraft for its and their use forever.
Seller hereby warrants to Buyer and its successors and assigns that
there is hereby conveyed to Buyer on the date hereof title to the Aircraft free
and clear of all liens, claims, charges and encumbrances whatsoever and that
Seller will warrant and defend such title against all claims and demands.
WITH THE SOLE EXCEPTION OF THE EXPRESS WARRANTIES SET FORTH
HEREINABOVE REGARDING TITLE, THE AIRCRAFT IS SOLD "AS IS, WITH ALL FAULTS."
SELLER MAKES NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO
MERCHANTABILITY OR FITNESS APPLICABLE TO AIRCRAFT OR ANY EQUIPMENT APPLICABLE
THERETO. BUYER AGREES THAT NO WARRANTY HAS BEEN EXPRESSED OR IMPLIED BY SELLER
OR ANY OF SELLER'S REPRESENTATIVES. BUYER FURTHER AGREES THAT IT HAS HAD AN
OPPORTUNITY TO INSPECT THE AIRCRAFT, ITS OPERATING SYSTEMS, ITS LOGBOOKS AND
RECORDS, THAT SAID INSPECTION HAS BEEN CONDUCTED TO BUYER'S SATISFACTION AND,
ACCORDINGLY, BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE AIRCRAFT IS
BEING PURCHASED "AS IS." BUYER HEREBY EXPRESSLY WAIVES ANY CLAIM FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RESULTING IN PERSONAL INJURY,
AGAINST SELLER OR SELLER'S REPRESENTATIVES.
B-1
IN TESTIMONY WHEREOF we have set our hand this ___ day of _______,
2002.
XXXXX OIL COMPANY
By: ______________________________
Name: ______________________________
Title: ______________________________
B-2
EXHIBIT C
ASSIGNMENT OF RIGHTS
(Form of letter from SELLER to BUYER, with copies to be sent to Airframe
Manufacturer and Engine Manufacturer)
Gentlemen:
Reference is made to the Aircraft Purchase Agreement dated as of March
__, 2001 between XXXXX OIL COMPANY ("SELLER") and UBICS HOLDING COMPANY
("BUYER") pertaining to the purchase of one (1) Boeing 727-44 Aircraft bearing
Airframe Manufacturer's serial number 19318 and United States registration xxxx
N44MD (the "Aircraft") bearing three Xxxxx & Whitney JT8D-9A engines with Engine
Manufacturer's serial numbers 665625, 665839 and 664474.
SELLER hereby assigns to BUYER any and all existing assignable
warranties, obligations, liabilities, service life policies and patent
indemnities of manufacturers and maintenance and overhaul agencies of and for
the Aircraft and its engines and components, including any rights which may have
accrued prior to BUYER's purchase of the Aircraft but which have not been fully
exercised by SELLER.
By copy of this letter, SELLER is notifying Boeing and Xxxxx & Xxxxxxx
of this assignment by SELLER to BUYER.
The engines installed on the Aircraft are as follows:
Engine #1: [__________]
Engine #2: [__________]
Engine #3: [__________]
C-1
EXHIBIT D
AIRCRAFT ACCEPTANCE CERTIFICATE
UBICS HOLDING COMPANY (the "Buyer") hereby accepts and acknowledges receipt from
XXXXX OIL COMPANY (the "Seller") in accordance with the terms and conditions of
the Aircraft Purchase Agreement dated October __, 2002 between the parties
hereto (the "Aircraft Purchase Agreement"), the following described Aircraft
and/or equipment.
Aircraft Type: Used Boeing 727-400
Registration: N44MD
Manufacturer's S/N: 19318
Airframe Hours/Landings: _____ Hours/_____ Landings
Engines: Xxxxx & Xxxxxxx JT8D-9A
Engine S/Ns: 665625, 665839 and 664474
Total Time Engines: _________, _________ and _________
The Aircraft and/or equipment referred to above, including all equipment, log
books, maintenance records, , was received by me on the date set forth below and
is accepted in accordance with the terms of the Aircraft Purchase Agreement,
except as noted below:
Exceptions: ______________
IN WITNESS WHEREOF, this instrument has been duly signed by the undersigned
authorized party(ies), the Aircraft accepted on _____________, 2002.
SELLER: XXXXX OIL COMPANY
By: ___________________
Print: ___________________
Its: ___________________
BUYER: UBICS HOLDING COMPANY
By: ___________________
Print: ___________________
Its: ___________________
D-1
From: Xxxxx, Xxxx X.
Sent: Sunday, October 13, 2002 12:52 AM
To: 'Xxxxxxx X. Xxxxx'
Cc: 'xxxxxxxx@xxxxx.xxx'; Xxxx, Xxxxx X.; 'xxxxxxxx@xxx.xxx';
'xxxxxxx@xxxxxxxxxxxx.xxx'
Subject: Amendment to Aircraft Purchase Agreement (Agreement)
Xxxxx,
Pending your email confirmation, this email memorializes the following amendment
to the Agreement between Xxxxx Oil Company (Seller) and UBICS Holding Company
(Buyer):
1. The parties shall transfer title to the Aircraft on an "as-is, where-is"
basis;
2. Seller agrees in good faith to provide Buyer with all maintenance records
and all manuals for the Aircraft that are in Seller's possession;
3. The purchase price is to be decreased to $3,350,000 (reduced $150,000 from
the initial $3,500,000 purchase price);
4. Seller shall be responsible for all costs and expenses associated with the
Aircraft (including repairs, maintenance, fees, charges, etc.) incurred as of
12:00 am (EST) on Sunday, October 13, 2002, with the exception of the fuel
costs for the trip by Buyer on October 12th -- which shall be paid by Buyer;
5. The parties shall deliver all closing documents and the $3,350,000 purchase
price into escrow with the Escrow Agent by the close of business on Wednesday,
October 16, 2002;
6. The parties shall cooperate in good faith to arrange for the expeditious
receipt of lien clearance documentation;
7. If all conditions are satisfied by the close of business on October 16th
except that lien releases have not been received, then the parties shall deem
the transaction to be closed in escrow and shall use best efforts to thereafter
obtain the title clearance documentation as quickly as possible; and
8. Buyer may commence with any and all work contemplated to be done on the
Aircraft (inspections, remodeling, etc.) as contemplated by the Agreement as of
the time and date of this email provided that Buyer shall preserve the interior
components pending closing.
Xxxx X. Xxxxx
Xxxxxx Xxxxxxxx LLP
50/th/ Floor
One Mellon Bank Center
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Phone: (000)000-0000
FAX: (000)000-0000
EMAIL: xxxxxx@xxxxxxxxx.xxx
Page 1 of 2
From: Xxxxxxx X. Xxxxx [Xxxxxx@xxxxxxxxxxxxxx.xxx]
Sent: Sunday, October 13, 2002 1:20 AM
To: Xxxxx, Xxxx X.
Subject: Re: Amendment to Aircraft Purchase Agreement (Agreement)
Xxxx:
Your correspondence below is accepted with the following additional
understandings:
Your Paragraph 1 is not intended to and does not modify the "as is, where
is, with all faults" and disclaimer of warranties language of Subsection 5.3.12
of the Purchase Agreement. It simply means that those agreements set forth and
contained in Section 5.3 and elsewhere in the Purchase Agreement pertaining to
Condition of the Aircraft and concerning obligations that Seller would otherwise
remain responsible for at closing (e.g., a test flight, 5.2; all equipment and
operating systems operating in accordance with their intended use and within
specified limits, 5.3.3.; compliance with all airworthiness directives, 5.3.7;
compliance with all service bulletins, 5.3.7(a)) are now dispensed with. This is
intended to be a true "as is, where is, with all faults, latent and patent" sale
in the fullest sense of the words. Seller's obligations will now be limited to
delivering the documents necessary to transfer good title to Buyer (xxxx of
sale, assignment of warranties and lien releases) and any maintenance manuals,
aircraft log books and any other documents relating to the aircraft that are
currently in Seller's possession, but nothing else. Also, I want to confirm that
Article 9-B is unaffected by this understanding and Buyer will still name Seller
as and additional insured on its liability policy so long as it means no
additional insurance premium for Buyer and, if it does, Seller will have the
option to pay the additional premium or lose the coverage. Xxxx, with those
points of clarification, I believe we are good to go.
srh
----- Original Message -----
From: "Xxxxx, Xxxx X." (XXXXXX@xxxxxxxxx.xxx)
To: "'Xxxxxxx X. Xxxxx'" (Xxxxxx@xxxxxxxxxxxxxx.xxx)
Cc: (xxxxxxxx@xxxxx.xxx); "Xxxx, Xxxxx X." (XXXXX@xxxxxxxxx.xxx);
(xxxxxxxx@xxx.xxx); (gaddisg@crowedunlevy,com)
Sent: Saturday, October 12, 2002 9:51 PM
Subject: Amendment to Aircraft Purchase Agreement (Agreement)
Xxxxx,
Pending your email confirmation, this email memorializes the following amendment
to the Agreement between Xxxxx Oil Company (Seller) and UBICS Holding Company
(Buyer):
1. The parties shall transfer title to the Aircraft on an "as-is, where-is "
basis;
2. Seller agrees in good faith to provide Buyer with all maintenance records and
all manuals for the Aircraft that are in Seller's possession;
3. The purchase price is to be decreased to $3,350,000 (reduced $150,000 from
the initial $3,500,000 purchase price);
4. Seller shall be responsible for all costs and expenses associated with the
Aircraft (including repairs, maintenance, fees, charges, etc.) incurred as of
12:00 am (EST) on Sunday, October 13, 2002, with the exception of the fuel costs
for the trip by Buyer on October 12th -- which
file://C:\Documents%20and%20Settings\walkr0pi\Local%20Settings\Temp\h.notes\Re%2
...... 11/4/2002
shall be paid by the Buyer;
5. The parties shall deliver all closing documents and the $3,3500,00 purchase
price into escrow with the Escrow Agent by the close of business on Wednesday,
October 16, 2002:
6. The parties shall cooperate in good faith to arrange for the expeditious
receipt of lien clearance documentation;
7. If all conditions are satisfied by the close of business on October 16th
except the lien releases have not been received, then the parties shall deem
the transaction to be closed in escrow and shall use best efforts to thereafter
obtain the title clearance documentation as quickly as possible; and
8. Buyer may commence with any and all work comtemplated to be done on the
Aircraft (inspections, remodeling, etc.) as comtemplated by the Agreement as of
the time and date of this email provided that Buyer shall preserve the interior
components pending closing.
Xxxx X. Xxxxx
Xxxxxx Xxxxxxxx LLP
50th Floor
One Mellon Bank Center
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Phone: (000)000-0000
FAX: (000)000-0000
EMAIL: xxxxxx@xxxxxxxxx.xxx
*******************************************************************************
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only for the person(s) named. Any use, distribution, copying or disclosure by
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********************************************************************************
From: Xxxxx, Xxxx X.
Sent: Sunday, October 13, 2002 1:35 AM
To: 'Xxxxxxx X. Xxxxx'
Cc: 'xxxxxxxx@xxxxx.xxx'; Xxxx, Xxxxx X.; 'xxxxxxxx@xxx.xxx';
'xxxxxxx@xxxxxxxxxxxx.xxx'
Subject: RE: Amendment to Aircraft Purchase Agreement (Agreement)
Xxxxx,
Your clarification is accepted. One clarification of my own -- on #4 of my email
-- the fuel costs would relate only to the San Antonio - Oakland leg of the trip
(and not the round trip expense). We are good to go. Have a good night.
Xxxx X. Xxxxx
Xxxxxx Xxxxxxxx LLP
50/th/ Floor
One Mellon Bank Center
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Phone: (000)000-0000
FAX: (000)000-0000
EMAIL: xxxxxx@xxxxxxxxx.xxx