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EXHIBIT 10.1
LEARJET 45
AIRPLANE PURCHASE AGREEMENT
This Agreement is made by and between Learjet Inc., a Delaware corporation
with its principal offices in Wichita, Kansas ("Learjet"), and TRC REALTY CO.
("Buyer") and shall be effective as of the date of its acceptance by Learjet.
In consideration of the mutual covenants made herein and subject to the
following terms and conditions, Learjet agrees to sell and Buyer agrees to buy
the new Learjet airplane (the "Airplane") described below.
SECTION I. AIRPLANE DESCRIPTION
A. The Airplane is a new Learjet 45, Serial Number 119, more fully
described in the Specification and Description dated 09-97 (the
"Specification") attached hereto as Exhibit "A" and made a part hereof by
reference, together with the avionics, other equipment, and interior and
exterior installations and finishings ("Options") selected by Buyer.
B. The Options are described and the price of the Options is set forth in
the Optional Equipment Description & Pricing List dated 05-97 attached hereto
Exhibit "F". Buyer agrees to specify the Options that are in addition to or
different from those specified on Exhibit "C" to be installed on the Airplane on
or before 180 days prior prior to the "Anticipated Delivery Date" (the "Option
Date").
SECTION II. PRICE AND PAYMENT AND DELIVERY SCHEDULE
A. Subject to adjustments of any deleted options or additional options (as
hereinafter defined) selected by Buyer after the date hereof, the purchase
price of the Airplane shall be:
Base Price $7,200,000.00 U.S.
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B. Optional Equipment and Miscellaneous items:
Exhibits "B" (Special Conditions); "C" (Aircraft Profile); "D" (Warranty
Xxxx of Sale); "E" (Aircraft Acceptance Certificate) are attached hereto and
made a part of this Agreement. TBD = To Be Determined _______________
Total Optional Equipment and Miscellaneous Items: $262,100.00 U.S.
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C. Total Purchase Price: $7,462,100.00 U.S.
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D. The Purchase Price shall be payable in U.S. Dollars as follows: See
Exhibit "B" Item #2
E. See Exhibit "B" Item #3
EXCEPT FOR THE EXPRESS TERMS OF THE LEARJET AIRPLANE WARRANTY POLICY SET FORTH
IN THE SPECIFICATION, LEARJET MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE.
SUCH WRITTEN WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, OBLIGATIONS OR
LIABILITIES OR LEARJET WITH RESPECT TO THE MANUFACTURE, SALE, LEASE, OPERATION
OR USE OF THE AIRPLANE AND, EXCEPT AS SET FORTH THEREIN, LEARJET SHALL NOT BE
LIABLE IN WARRANTY, NEGLIGENCE, OR STRICT LIABILITY FOR ANY DEFECTS, FAILURES
OR MALFUNCTIONS IN PERFORMANCE, DESIGN, MANUFACTURE OR OTHERWISE, WHETHER
PATENT OR LATENT. THE EXTENT OF LEARJET'S LIABILITY UNDER SUCH WARRANTY IS
LIMITED TO THE REPAIR OR REPLACEMENT OR DEFECTS IN THE MANNER DESCRIBED IN SUCH
WARRANTY, AND ALL OTHER REMEDIES AGAINST LEARJET FOR INCIDENTAL, CONSEQUENTIAL
OR OTHER DAMAGES ARISING OUT OF THE MANUFACTURE, SALE, LEASE, OPERATION OR USE
OF THE AIRPLANE ARE EXPRESSLY EXCLUDED.
In the event the Buyer is a natural person or sole proprietorship then,
notwithstanding anything herein to the contrary, the limits on warranties or on
remedies for breach shall not apply to the extent (but only to the extant) such
limitations are prohibited by New York Law.
Buyer and Learjet agree that this transaction is governed solely by the
terms and conditions set forth (1) above, (2) on the reverse side hereof, (3) in
the exhibits referenced and incorporated herein, and (4) in all amendments
hereto, all of which together constitute the complete agreement between Buyer
and Learjet with respect to the Airplane. Buyer acknowledges that Buyer has read
and understands the complete agreement, and that this Agreement shall be not
binding upon Learjet until it has been executed by both an authorized officer of
Learjet and an authorized representative of Learjet's Marketing Administration
Department at the address set forth below.
BUYER HEREBY ACKNOWLEDGES AND AGREES THAT NONE OF LEARJET'S SALESMEN ARE
AUTHORIZED TO WAIVE OR ALTER ANY TERM, PROVISION OR CONDITION OF THIS
AGREEMENT, OR TO MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THIS
AGREEMENT OR THE AIRPLANE.
BUYER LEARJET
Name: X. X. Xxxxx One Learjet Way
--------------------------------- X.X. Xxx 0000
0-00-00 Xxxxxxx XX, 00000-0000
Address: Xxx Xxxxxx Xxxxx, Xxxxx 000X
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Xxxxxx, Xxxxxxxx 00000-0000
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By:
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Title: Vice President Sales N.D.
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By: Xxxxxx X. Xxxxx By: Xxxxx Xxxxx - Xxxx
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Title: Chief Executive Officer Title: Director - Contracts
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Date: 8/31/98 Date: 9/3/98
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LEARJET 45
AIRPLANE PURCHASE AGREEMENT
SECTION IV. DELIVERY
A. DELIVERY PERIOD. Learjet may tender delivery of the Airplane
anytime within the Delivery Period; provided, however, that in the event (1)
Buyer fails to specify the Options by the Option Date; (2) Buyer selects, with
the approval of Learjet, additional or alternative avionics, other equipment,
interior or exterior installations or furnishings or other changes in the
Airplane after the Option Date ("Additional Options"); (3) installation of any
of the Options and/or Additional Options affects Learjet's ability to timely
deliver the Airplane; (4) delivery is delayed due to causes beyond Learjet's
control; or (5) defects are noted during the inspection and acceptance flight
provided for under Section V.A. hereof, then the Delivery Period shall be
extended for the period of time reasonably necessary, under the circumstances,
to permit Learjet to deliver the Airplane. If delivery of the Airplane can be
made prior to the Anticipated Delivery Date, and Learjet elects to make such
prior delivery, then Learjet agrees to give Buyer at least ten (10) days prior
written notice of the date upon which delivery will be made.
B. PLACE OF DELIVERY. Delivery of the Airplane to Buyer shall be
F.A.F. Windsor Locks, Connecticut or Wichita, Kansas, at Buyer's option, at
Learjet's expense, unless a different location is agreed upon in writing by
Buyer and Learjet.
SECTION V. LEARJET'S OBLIGATIONS
A. DELIVERY AND ACCEPTANCE. Learjet will notify Buyer when the
Airplane is ready for delivery and permit Buyer to inspect the Airplane and
participate in an acceptance flight of not more than two (2) hours duration
which shall be controlled by Learjet. If no defects are noted during the
inspection and acceptance flight, Buyer shall accept and pay for the Airplane
on the Delivery Date. If any defects are noted during such inspection and
acceptance flight, Learjet shall correct the same within a reasonable time and,
if necessary, and as provided in Section VI.C. hereof, the Delivery Period
shall be extended to permit Learjet to correct such defects. ALL EXPENSES FOR
THE ACCEPTANCE AND DELIVERY FLIGHTS SHALL BE AT LEARJET'S EXPENSE. ALL AIRPLANE
SYSTEMS WILL BE FULLY OPERATIONAL, ALL AIRWORTHINESS DIRECTIVES AND ALL
MANDATORY AND RECOMMENDED MANUFACTURER'S SERVICE BULLETINS MUST BE FULLY
COMPLIED WITH, AND MAINTENANCE CHAPTER 5 ITEMS WILL BE COMPLIED WITH.
B. TRANSFER OF TITLE. At the time of delivery, Learjet shall transfer,
or cause to be transferred, title to the Airplane to Buyer, free and clear of
all liens and encumbrances, by means of a Xxxx of Sale duly prepared and
executed on the appropriate U. S. Federal Aviation Administration ("FAA") form
and Warranty Xxxx of Sale in the form of Exhibit "D".
C. CERTIFICATE OF AIRWORTHINESS. At the time of delivery, Learjet
shall furnish the Buyer with a Standard Airworthiness Certificate issued by the
FAA certifying that, as of the date of issuance, the Airplane has been
inspected and found to conform in all respects to the applicable FAA Type
Certificate. The airworthiness certificate shall have no restrictions or
limitations except for those restrictions or limitations set forth in the
Flight Manual and or the Type Certificate.
D. PUBLICATIONS. Learjet shall furnish the Buyer with one copy each of
the applicable Flight Manual, Maintenance Manual, Parts Catalog, and Wiring
Manual and, for a period of one (1) year after delivery of the Airplane,
Learjet shall furnish to the Buyer, without charge, any revisions to such
publications.
E. TRAINING. The price of the Airplane includes, and Learjet shall
make available to Buyer, ground school, simulator, flight training, and type
rating check ride for THREE (3) qualified pilots in accordance with the terms
of the Crew Training Agreement set forth in the Specification.
SECTION VI. BUYER'S OBLIGATIONS
A. PAYMENTS. Buyer agrees to make all deposits and payments required
to be made pursuant to Section II. hereof as and when the same are due. Late
payments shall be subject to interest charges from the date due until paid a
rate equal to the PRIME RATE as reported from time to time by the Wall Street
Journal.
B. SPECIFICATION OF OPTIONS AND CHANGES. Buyer agrees to specify the
Options on or before the Option Date in accordance with Section I. hereof. Any
Additional Options requested by Buyer after the Option Date shall be subject to
Learjet's approval. Buyer understands and agrees that such changes may result
in additional charges and/or delays in the Delivery Date.
C. INSPECTION. Within three (3) business days after Learjet notifies
Buyer that the Airplane is ready for delivery, Buyer agrees to inspect the
Airplane, and if the Airplane meets the Specification and the terms of this
Airplane Purchase Agreement to accept and pay for the Airplane on the Delivery
Date. If Buyer has not accepted the Airplane within seven business (7) days
after the date Learjet notifies Buyer that the Airplane is ready for delivery,
then Buyer agrees to immediately notify Learjet, in writing, of the reasons for
Buyer's failure to accept the Airplane. The unpaid balance of the Purchase
Price shall be subject to interest charges from the date the Airplane is ready
for delivery until paid at the rate described in Paragraph A. of this Section
VI; provided, however, that if Buyer's failure to accept and pay for the
Airplane is due to the fact that the Airplane does not meet the Specification,
then no interest shall accrue unless and until such time as the Airplane meets
the Specification and is tendered for delivery by Learjet and Buyer refuses
acceptance.
If for any reason the Airplane tendered for delivery by Learjet does
not meet the Specification, and Buyer refuses to accept delivery thereof, Buyer
agrees to specify, in writing, the basis of Buyer's refusal to accept delivery
and to give Learjet a reasonable opportunity or opportunities to cure any
defect and thereafter, deliver the Airplane to Buyer. If defects in the
Airplane are discovered by Buyer subsequent to delivery, Buyer agrees to
immediately notify Learjet, in writing, of such defects and further agrees to
provide Learjet a reasonable opportunity or opportunities to cure the same in
accordance with the terms of the Learjet Airplane Warranty Policy set forth in
the Specification.
D. TAXES. At the time of delivery of the Airplane, Buyer shall remit
to Learjet (or furnish satisfactory evidence of direct payment by Buyer), in
addition to any other amounts due Learjet hereunder, (1) any and all federal,
state, or local sales or other taxes
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LEARJET 45
AIRPLANE PURCHASE AGREEMENT
applicable to the sale and delivery of the Airplane, (2) any and all import
duties, import taxes, or other import charges levied by other than the United
States Government. Buyer hereby agrees to indemnify and hold Learjet harmless
from and against any and all applicable sales, use or other taxes which,
inadvertently or for any other reason, are not collected by Learjet at the time
delivery.
SECTION VII. GENERAL TERMS AND CONDITIONS
A. LOSS, DAMAGE OR DESTRUCTION OF THE AIRPLANE. In the event of loss,
damage or destruction of the Airplane prior to delivery, Learjet shall be
excused from and not be liable for any delay or failure in the performance of
this Agreement. In such event Buyer shall have the right to accept delivery of
the next available airplane, as determined by Learjet, or to terminate this
Agreement. Buyer shall notify Learjet of its decision within fifteen (15) days
from the date of receipt of notice from Learjet of the loss, damage or
destruction of the Airplane and the anticipated delivery date and price of the
next available Learjet 45 priced as per this agreement. In the event of
termination of this Agreement hereunder. Buyer shall be entitled to recover all
amounts paid to Learjet on account of the Airplane together with interest
thereon at the PRIME RATE as reported from time to time by the Wall Street
Journal.
B. TITLE AND RISK OF LOSS. Title and risk of loss to the Airplane
shall pass to Buyer at the time of delivery and upon the execution of an
Aircraft Acceptance Certificate in the form of Exhibit "E".
C. FAILURE OR DELAY IN DELIVERY. Learjet shall not be liable for any
failure to deliver or delay in delivery of the Airplane due to causes beyond
its control and the Delivery Period shall be extended by a period of time equal
to such delay. Such causes include, but are not limited to, acts of God or
public enemy, war, civil commotion, insurrection, riot, embargo, fire,
explosion, earthquake, lightning, flood, drought, windstorm, tornado, other
action of the elements, epidemics, governmental acts, regulations or
directives, labor strikes or work stoppages or slowdown, delays in vendor
deliveries, failure after due diligence to obtain type approval or
airworthiness certification, or any other cause beyond Learjet's control or not
attributable to Learjet's negligence.
D. TERMINATION.
(1) Learjet may terminate this Agreement immediately at any time
prior to delivery of the Airplane by written notice to the Buyer in the event
(a) Buyer makes an assignment for the benefit of creditors, admits an inability
to pay its debts as they become due, (b) a receiver or trustee is appointed for
Buyer or for substantially all of Buyer's assets and, if appointed without
Buyer's consent, such appointment is not discharged or stayed within thirty
(30) days, or (c) proceeding under any law of bankruptcy, insolvency, or
reorganization or relief of debtors is instituted by or against Buyer and, if
not contested by Buyer, not dismissed or stayed within thirty (30) days.
(2) Learjet may terminate this Agreement immediately upon
written notice to Buyer in the event Buyer (a) fails to make any payment
required to be made by Buyer hereunder when due, (b) fails to specify the
Options within fifteen (15) days after the Option Date, or (c) fails or refuses
to accept delivery of the Airplane within seven (7) days (i) after the date the
Airplane is ready for delivery or (ii) after Learjet has cured, within a
reasonable time, any defects noted during Buyer's inspection of the Airplane.
In the event of termination of this Agreement by Learjet under either
subparagraph (1) or subparagraph (2) of this Paragraph D. of Section VII., all
of Buyer's right, title and interest in, to and under this Agreement and the
Airplane shall be extinguished, and Learjet shall retain all payments therefore
made by the Buyer as liquidated damages and not as a penalty and as Learjet's
sole and exclusive remedy, and the parties shall thenceforth be released from
all further obligations. Such damages may include, but are not limited to, loss
of profit on this sale, direct and indirect costs incurred as a result of
disruption in production, training expense advances, and selling expenses in
effecting resale of the Airplane. The parties agree that the amount of
liquidated damages set forth herein is a reasonable forecast of anticipated or
actual loss in view of the difficulty of estimating the actual damages.
(3) Buyer may terminate this Agreement at any time prior to
delivery of the Airplane by giving not less than ten (10) days written notice
to Learjet in the event Learjet (a) fails to tender delivery of the Airplane
within the Delivery Period and such failure is not excused pursuant to
Paragraph C. of this Section VII. or (b) Learjet fails for any reason
whatsoever to tender delivery of the Airplane within three (3) months after the
end of the Delivery Period. In the event of termination of this Agreement by
Buyer under subparagraph (3) of this Paragraph D. of Section VII. Learjet shall
promptly refund all amounts paid by Buyer on account of the Airplane, together
with interest thereon at the PRIME RATE as reported from time to time by the
Wall Street Journal, from the date of deposit to the date of refund, which
shall be Buyer's sole and exclusive remedy for Learjet's failure to deliver the
Airplane as set forth in subparagraph (3) of this Paragraph D. of Section VII.
(4) Buyer recognizes, understands and agrees that Buyer shall
not have the right to terminate this Agreement because of any change or
fluctuation in the value of any currency.
E. ASSIGNMENT. Buyer may until the delivery date of the Airplane and
upon 30 days prior written notice to Learjet, assign all of its rights and
obligations under this Airplane Purchase Agreement (i) without Learjet's prior
written consent, to a subsidiary or to other affiliate owned, or controlled by,
or under common control or ownership with, Buyer, or (ii) without Learjet's
prior written consent, to a bank or other financial institution as lender or
lessor under a lease or financing of the Airplane by Buyer. BUYER GUARANTEES
FULL PAYMENT ON AIRCRAFT AT DELIVERY. Learjet reserves the right to assign and
transfer its rights under this Agreement to a financing institution for
financial and accounting purposes. Buyer agrees to acknowledge its consent
thereto by executing and delivering such documents or instruments as Learjet
may reasonably request.
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LEARJET 45
AIRPLANE PURCHASE AGREEMENT
F. NOTICES. Any notice to be given hereunder shall be sent by certified
or registered mail, commercial courier, telegram, or telecopier to the party to
which such notice is to be given at the address set forth above or such other
address as the party to receive such notice shall designate in writing. Notice
so sent shall be deemed to be received upon actual receipt.
G. ENTIRE AGREEMENT. This Agreement and the matters referred to herein
constitute the entire agreement of Learjet and Buyer with respect to the
Airplane and supersede and cancel all prior statements, representations,
negotiations, understandings, agreements, undertakings, and communications,
whether verbal or written, with respect to or in connection with the subject
matter hereof. This Agreement may only be amended or changed by a written
instrument signed by both parties hereto.
H. APPLICABLE LAW. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of New York.
I. ARBITRATION. All disputes arising under this Agreement which cannot
be settled amicably between Learjet and Buyer shall be resolved by arbitration
conducted in Wichita, Kansas, in accordance with the rules of the American
Arbitration Association. The decision of the arbitrators shall be final and
binding upon both parties.
J. SEVERABILITY. If any of the terms or provisions of this Agreement
are determined or held to be illegal or unenforceable under applicable law,
such terms and provisions shall be deemed to be ineffective and severed from
the remaining terms and provisions hereof which shall be unimpaired and remain
in full force and effect.
K. ACCEPTANCE IN WICHITA. This Agreement shall become a binding
contract upon its acceptance and execution by Learjet at its principal offices
in Wichita, Kansas.
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BOMBARDIER
AEROSPACE
Learjet Inc.
EXHIBIT "B"
SPECIAL CONDITIONS
1. Base Price shall be adjusted by the percentage difference in the Consumer
Price Index, Wage Earners and Clerical Workers (CPI-W) 1982-1984=100 as
published by the U.S. Department of Labor, Bureau of Labor Statistics, for
the month of October, 1997 (158.5) and up to and including the scheduled
month of delivery.
2. Section II, Paragraph D, of this Airplane Purchase Agreement is amended to
read as follows:
a) Prior to the execution of this Airplane Purchase Agreement Buyer
has provided Seller a fully refundable deposit of $500,000.
b) The balance of the Purchase Price in the amount of $6,962,100,
plus applicable taxes and other charges, shall be paid by
cashier's check drawn on a U.S. bank or wire transfer at the time
of delivery of the Airplane.
3. The Airplane will be delivered to Buyer, or its assigns, between April 1,
1999 and September 30, 1999 (the "Delivery Period"). On or before October
21, 1998, Seller shall identify the serial number of the Airplane and its
scheduled date of delivery to Buyer (the "Anticipated Delivery Date"). In
the event that the Airplane is not so identified by such date, the $500,000
Deposit shall be promptly returned to Buyer. The Buyer may, at its option,
on or before October 21, 1998, determine to accept delivery of Learjet 45
Serial Number 119 (currently scheduled for delivery in May 2000), which for
purposes of this Airplane Purchase Agreement, shall then become the
Airplane.
4. Should an earlier delivery position for a Learjet 45 become available,
Buyer will be notified with pertinent information as it relates to block
changes and the improvements on or round that serial number by Learjet and
may transfer the Airplane Purchase Agreement one time to such earlier
delivery position within 48 hours after such notification from Learjet.
5. On the date of delivery, the Flight Management system of the Airplane shall
be equipped with the latest software then available.
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Buyer's Initial ___
Learjet's Initial ___
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BOMBARDIER
AEROSPACE
Learjet Inc.
EXHIBIT "B"
SPECIAL CONDITIONS
6. Without additional charge, Learjet shall furnish Buyer a two year
subscription to LASER.
7. Warranty Labor includes labor access to remove and install aircraft parts
during the warranty period.
8. Learjet will ensure that AlliedSignal will provide to the Buyer 400 flight
hours of free MSP (Maintenance Service Plan) or the reduced rate, if the
Buyer chooses to enroll for a five year term.
9. The Airplane shall have no more than 25 hours of flight time and all
calendar limited components shall be fresh within 30 days of delivery.
10. Learjet agrees that Buyer shall have the option to trade-in Learjet 45-TBD
on a new, greater value Bombardier Business aircraft provided that the
Buyer's new aircraft delivers within the following years of operation on
said trade-in:
- Three (3) years, credit 85% of the purchase price of the aircraft
and not-to-exceed 1,200 hours
- Four (4) years, credit 80% of the purchase price of the aircraft
and not-to-exceed 1,600 hours
- Five (5) years, credit 75% of the purchase price of the aircraft
and to not-to-exceed 2,000 hours
Buyer's Initial ___
Learjet's Initial ___
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