STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into as of
February 5, 1999 by and among FINE AIR SERVICES CORP., a Delaware corporation or
its wholly owned subsidiary ("Purchaser"); INTERNATIONAL AIR LEASES OF PR, INC.,
a Puerto Rico corporation ("Parent"), XXXXXXX X. XXXXX ("Xxxxx"), XXXX XXXXX
("X. Xxxxx") and XXXX XXXXX ("Xxxxx"). Xxxxx, X. Xxxxx and Xxxxx are hereinafter
collectively referred to as the "Parent Stockholders.".
RECITALS
This Agreement is being entered into with reference to the following:
A. Parent and Xxxxx have entered into an agreement dated November 12, 1998
(the "Acquisition Agreement") with Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx"), the sole
shareholder of International Air Leases, Inc., a Delaware corporation ("IAL"),
Aircraft Leasing, Inc., a Delaware corporation ("ALI"), and N304 Corp., a
Delaware corporation ("N304 Corp."), pursuant to which the Parent will acquire
from Xxxxxxxxx, all of the outstanding capital stock of each of IAL, ALI and
N304 Corp., on the terms and subject to the conditions contained in the
Acquisition Agreement.
B. Air Flite Operations, Inc., a Delaware corporation (the "Stockholder")
and a wholly-owned subsidiary of IAL owns 100% of the issued and outstanding
capital stock of Arrow Air, Inc., a Florida corporation ("Arrow").
C. Immediately following the Parent's acquisition of the capital stock of
IAL, ALI and N304 Corp., the Purchaser desires to acquire from the Stockholder,
and the Parent and Xxxxx desire to cause the Stockholder to sell to the
Purchaser, all of the issued and outstanding shares of capital stock of Arrow
(the "Arrow Stock'), all on the terms and subject to the conditions contained in
this Agreement.
D. Simultaneous with the execution and delivery of this Agreement, the
Purchaser has entered into an agreement of purchase and sale of assets with
Xxxxx and the Parent, dated of even date herewith (the "Asset Purchase
Agreement"), pursuant to which it is contemplated that on the "Closing Date" (as
defined in this Agreement and in the Asset Purchase Agreement) Xxxxx and the
Parent shall cause IAL, ALI, N304 Corp. (collectively, the "Companies"), their
direct and indirect subsidiaries or partnerships in which the Companies or such
subsidiaries have a beneficial interest who own the "Assets" specified in the
Asset Purchase Agreement (collectively, with the Companies, the "Asset Owners")
to sell, transfer and assign to the Purchaser, and Purchaser shall in addition
to the Arrow Stock, purchase and acquire from the Asset Owners all of their
right, title and interest in and to the Assets, all on the terms and subject to
the conditions contained in the Asset Purchase Agreement.
E. The Parent Stockholders own in the aggregate 100% of the shares of
capital stock of the Parent.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
THE STOCK PURCHASE
1.1 Purchase and Sale of Arrow Stock. Subject to the terms and conditions
of this Agreement, at the Closing (as defined in Section 1.2), Purchaser shall
acquire and the Stockholder shall sell, convey, transfer, assign and deliver to
Purchaser all of the issued and outstanding Arrow Stock, free and clear of any
Liens (as defined hereafter).
1.2 Closing. Subject to the terms and conditions of this Agreement, the
parties hereto shall use their best efforts to consummate the transactions
contemplated hereby and pursuant to the Asset Purchase Agreement (the "Closing")
on or before February 10, 1999, but in no event later than April 1, 1999 (unless
such date shall be extended pursuant to the provisions hereof), at the offices
of Xxxxxxxxx Traurig, P.A. in Miami, Florida, or such other time and place as
the parties may otherwise agree. The date on which the Closing occurs shall be
herein referred to as the "Closing Date." The Closing of the purchase of the
Arrow Stock shall occur simultaneous with the acquisition of the Assets pursuant
to the Asset Purchase Agreement, and such Closings shall take place on a date
which shall be the Business Day immediately following the expiration or
termination of the waiting period under the HSR Act, or receipt of an approval
from the Federal Trade Commission, the Department of Justice or any other court
or governmental authority in form and substance satisfactory to counsel to the
Purchaser, to the effect that consummation of the transactions contemplated by
this Agreement and the Stock Purchase Agreement shall not violate the HSR Act;
provided, that, absent mutual agreement of the Parent and the Purchaser to
extend such date, the Closing Date shall not occur later than April 1, 1999.
1.3 Purchase Price.
(a) The aggregate consideration (the "Purchase Price") that will be
paid by Purchaser to the Stockholder at the Closing in exchange for the Arrow
Stock shall be equal to Five Million ($5,000,000) Dollars.
(b) The Purchase Price shall be payable at Closing in cash via wire
transfer or certified check in the amount of the Purchase Price.
1.4 Delivery of Arrow Stock. At the Closing, the Parent and Xxxxx shall
cause the Stockholder to deliver to the Purchaser all, and not less than all, of
the Arrow Stock duly endorsed for transfer, with the signature of the record
owner, and Purchaser shall pay to the Seller the Purchase Price payable pursuant
to Section 1.3.
2
1.5 Corporate Records. At the Closing, in addition to the Arrow Stock, the
Parent and Xxxxx shall cause the Stockholder to deliver to the Purchaser all
corporate records, tax records, and minute and stock books and records relating
to Arrow.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND PARENT STOCKHOLDERS.
As a material inducement to the Purchaser to enter into this Agreement and
to consummate the transactions contemplated hereby as of the date hereof and as
of the Closing Date and pursuant to the Asset Purchase Agreement, the Parent and
the Parent Stockholders hereby jointly and severally make the following
representations and warranties to the Purchaser:
2.1 Title to Arrow Stock and Certain Assets.
(a) As of the date hereof, and on the Closing Date (i) the Parent
Stockholders own 100% of the issued and outstanding shares of capital stock of
the Parent, (ii) the Stockholder is and will be a wholly-owned subsidiary of IAL
and the record and beneficial owner of all issued and outstanding Arrow Stock,
and (iii) the Stockholder owns and will own the Arrow Stock free and clear of
any Lien. The assignments, endorsements, stock powers and other instruments of
transfer to be delivered by the Stockholder to the Purchaser at the Closing will
be sufficient to transfer all of the Stockholder's right, title and interest,
legal and beneficial, in the Arrow Stock to the Purchaser;
(b) As of the date hereof, the Asset Owners will own, free and clear
of any Liens (other than the Liens specifically identified in the Asset Purchase
Agreement), all of the Assets to be purchased by the Purchaser under the Asset
Purchase Agreement.
2.2 Enforceability. This Agreement has been duly executed and delivered by
each of the Parent and the Parent Stockholders and constitutes a legal, valid
and binding obligation of the Parent and the Parent Stockholders, enforceable
against each of them in accordance with its terms.
2.3 No Other Rights. The Arrow Stock represents and at the Closing will
represent 100% of the issued and outstanding shares of capital stock of Arrow,
and as at the date hereof there are not, and at the Closing there will not be
authorized, issued or otherwise committed to be issued any options, warrants, or
other rights exercisable for any shares of Arrow capital stock, or notes,
debentures, preferred stock or other securities convertible into any shares of
Arrow capital stock.
2.4 Organization, Good Standing and Qualification.
(a) The Parent is a corporation duly organized, validly existing and
in good standing under the laws of Puerto Rico, the Stockholder is a corporation
duly organized, validly
3
existing and in good standing under the laws of the State of Delaware and Arrow
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Florida.
(b) Arrow has and on the Closing Date will have all requisite power
and authority to carry on its business as now conducted and as proposed to be
conducted. Each of the Parent and Xxxxx has all requisite power and authority to
enter into this Agreement.
(c) Subject to consummation of the transactions contemplated by the
Acquisition Agreement, on the Closing Date both the Parent and the Stockholder
shall have all requisite power and authority to sell the Arrow Stock to
Purchaser and otherwise perform this Agreement and the transactions contemplated
hereby.
(d) Arrow is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify could have a
material adverse effect on the business, properties, operations, earnings,
assets, liabilities, condition (financial or otherwise) or prospects of Arrow
and its consolidated subsidiaries, when taken as a collective whole (a "Material
Adverse Effect").
2.5 Requisite Consents; Nonviolation.
Except as set forth in Section 2.5 of the Disclosure Schedule annexed
hereto as Exhibit A and made a part hereof (the "Disclosure Schedule") or where
the failure to comply with any of the provisions of this Section 2.5 would not,
individually or in the aggregate, have a Material Adverse Effect, the execution,
delivery and performance of this Agreement and the consummation by the
Stockholder of the transactions contemplated hereby and thereby (including,
without limitation, the offer, sale and delivery of the Arrow Stock) will not:
(a) require the consent, license, permit, waiver, approval,
authorization or other action of, by or with respect to, or registration,
declaration or filing with, any court or governmental authority, department,
commission, board, bureau, agency or instrumentality, domestic or foreign
("Governmental Authority"), including without limitation, the Federal Aviation
Authority ("FAA") or the Department of Transportation ("DOT") or any other
individual, partnership, corporation, unincorporated organization or
association, limited liability company, trust or other entity (collectively, a
"Person");
(b) violate or conflict with any provision of the Certificate
of Incorporation or the By-laws of the Stockholder or Arrow, a complete and
correct copy of which has been provided to counsel to the Purchaser; or
(c) constitute a default (with or without notice or lapse of time
or both) under, violate or conflict with, or give rise to a right of
termination, cancellation or acceleration or to a loss of a material benefit
under any Law (as defined in Section 2.8 below), Permit (as defined in Section
2.8 below), Order (as defined in Section 2.8 below), or contract, agreement,
arrangement or understanding, written or oral, to which either the Stockholder
or Arrow is or hereafter may be a party or by which the Stockholder, Arrow or
their respective properties are or hereafter may be bound.
4
2.6 Subsidiaries. Except as disclosed in Section 2.6 of the Disclosure
Schedule, Arrow has no subsidiaries and does not, and prior to the Closing will
not, own or control, directly or indirectly, any partnership interests, stock or
other equity interests in any partnership, corporation or other entity or any
voting rights or right to control the policies and direction of any partnership,
corporation or other entity.
2.7 Litigation. Except as set forth in Section 2.7 of the Disclosure
Schedule, there is no action, suit, proceeding, investigation or governmental
approval process (collectively, "Actions") pending or, to the best knowledge of
the Parent, threatened against Arrow, or affecting any of its properties or
assets (including, without limitation, any of its Permits) which individually or
in the aggregate would have a Material Adverse Effect, nor is there any basis
for any such Action. To the best knowledge of the Parent, there is no Action
against any of Arrow's directors, officers or employees in connection with its
business which, in the event of an adverse judgment against any such Person,
would have a Material Adverse Effect, nor is there any basis for any such
Action. The foregoing includes, without limitation, any Action pending or, to
the Parent's best knowledge, threatened (or any basis therefor known to Arrow)
involving the prior employment of any employees of Arrow, their use in
connection with the business of Arrow of any information or techniques allegedly
proprietary to any of their former employers, or their obligations under any
agreements with prior employers. To the best knowledge of the Parent, neither
Arrow nor any of its assets or properties, nor, in connection with its business,
the Stockholder or any of Arrow's directors, officers or employees, is subject
to any order, judgment, writ, injunction, decree, ruling or decision
(collectively, an "Order") of any Governmental Authority which could have a
Material Adverse Effect. There is no Action by Arrow currently pending or which
Arrow intends to initiate which could have a Material Adverse Effect.
2.8 Compliance with Laws; Permits.
(a) Assuming the accuracy of the representations made by the
Purchaser pursuant to Section 3 hereof, the offer and sale of the Arrow Stock by
the Stockholder to the Purchaser will be in compliance with all applicable
federal and state securities laws.
(b) To the best knowledge of the Parent, Arrow has not violated or
failed to comply with any statute, law, ordinance, rule, regulation or policy of
any Governmental Authority (collectively, "Laws") to which it or any of its
properties or assets is subject, except where non-compliance with any such Laws
would not, individually or in the aggregate, have a Material Adverse Effect.
(c) Schedule 2.8 to the Disclosure Schedule lists all permits,
licenses, orders, certificates, authorizations and approvals of any Governmental
Authority, including without limitation, all DOT route authorities operating
certificates and consent decrees and FAA certifications and consent decrees
enabling Arrow to operate an airline (collectively, the "Permits") owned or
otherwise possessed by Arrow. To the best knowledge of the Parent the Permits
listed on Schedule 2.8 represent all of the Permits that are required by Arrow
for the conduct of its business as presently conducted.
5
(d) All Permits listed on Schedule 2.8 are, and as of the Closing
will be, in full force and effect; no violations or notices of failure to comply
have been issued or recorded in respect of any such Permits; and the Parent has
no knowledge of any reason why such Permits may be revoked or suspended, except
in each case, where not compliance with this sentence would not, individually or
in the aggregate, have a Material Adverse Effect. Except where non-compliance
with the following would not, individually or in the aggregate, have a Material
Adverse Effect, all applications, reports, notices and other documents required
to be filed by Arrow with all Governmental Authorities have been timely filed
and are complete and correct in all material respects as filed or as amended
prior to the date hereof. With respect to any consents, if any, which may be
required to be obtained in respect to the continuation of any Permits (including
any DOT or FAA consents, if any, which may in the opinion of legal counsel, be
required), the Parent knows of no reason why such Permits or consents thereto
should not be approved and granted by the appropriate Governmental Authority. To
the best knowledge of the Parent, neither Arrow nor, to the best knowledge of
Arrow, any of its officers, employees or agents has made any illegal or improper
payments to, or provided any illegal or improper inducement for, any
governmental official or other Person in an attempt to influence any such Person
to take or to refrain from taking any action relating to Arrow.
2.9 Arrow Financial Statements; Absence of Certain Changes or Events.
The Parent has provided to the Purchaser true copies of all financial statements
relating to Arrow which are in the possession of the Purchaser, copies of which
are attached to the Disclosure Schedule, as Schedule 2.9. Since the date of the
most recent financial statement of Arrow set forth on Schedule 2.9 of the
Disclosure Schedules (the Arrow Financial Statements"), to the best knowledge of
the Parent, there has been no change in the business, properties, operations,
earnings, assets, liabilities, condition (financial or otherwise) or prospects
of Arrow, except for (a) changes in the ordinary course of business consistent
with past practice, or (b) as disclosed in the Disclosure Schedule, but in each
case, which have not had a Material Adverse Effect on Arrow.
2.10 Contracts. True and correct copies of all contracts, agreements,
notes, instruments, franchises, leases, licenses, commitments, arrangements or
understanding, written or oral (collectively, "Contracts") which are material to
the business of Arrow are listed on Schedule 2.10 to the Disclosure Schedule. To
the best knowledge of the Parent, except where non-compliance with any of the
following would not, individually or in the aggregate, have a Material Adverse
Effect (a) all of the Contracts are in full force and effect and constitute
legal, valid and binding obligations of Arrow and the other parties thereto; (b)
Arrow and each other party to the Contracts, has performed in all material
respects all obligations required to be performed by it or them under the
Contracts, and (c) no material violation or default exists in respect thereof,
nor any event that with notice or lapse of time, or both, would constitute a
default thereof, on the part of Arrow or any other party thereto; (d) none of
the Contracts is currently being renegotiated; and (e) the validity,
effectiveness and continuation of all Contracts will not be materially adversely
affected by the transactions contemplated by this Agreement or the Asset
Purchase Agreement.
6
2.11 Insurance. Arrow has in full force and effect all insurance
policies as are required for the operations of its business, except where the
failure to maintain such insurance would not, individually or in the aggregate,
have a Material Adverse Effect. Schedule 2.10 to the Disclosure Schedule lists
or describes all insurance policies, the carrier, the deductible and the policy
limits on all insurance policies applicable to the business of Arrow.
2.12 Labor Union Activities; Employee Relations. Except as disclosed on
Section 2.12 of the Disclosure Schedule, no employee of Arrow is represented by
any labor union or covered by any collective bargaining agreement; nor, to the
best knowledge of the Parent, has any labor union sought to represent any of its
employees of Arrow. There is no strike or other labor dispute involving Arrow
pending, or to the best knowledge of the Parent, threatened. To the best
knowledge of the Parent, no officer or key employee intends to terminate his
employment with Arrow. To the best knowledge of the Parent, no officer or key
employee of it is a party to or bound by any Contract, or subject to any
restrictions (including, without limitation, any non-competition restriction),
which would restrict the right of such person to participate in the affairs of
Arrow.
2.13 ERISA. Except as disclosed on Section 2.13 of the Disclosure
Schedule, to the best knowledge of the Parent Arrow does not maintain (nor has
it during the past seven years ever maintained) nor does it have (nor has it
during the past seven years ever had) any obligation under (including, without
limitation, any obligation to contribute to) an employee benefit plan as
described in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA").
2.14 Taxes. Except as disclosed in on Section 2.14 of the Disclosure
Schedule, to the best knowledge of the Parent: (a) all federal, state, city,
county, local and foreign income, franchise, sales, use and value added tax
returns and reports, and all other material tax returns and reports required to
be filed by Arrow in those or in any other jurisdiction (collectively,
"Returns") have within the past seven years been timely filed, (b) all such
Returns are true, correct and complete, except where the inaccuracies in any
such Return would not, individually or in the aggregate, have a Material Adverse
Effect, (c) all taxes, assessments, fees, interest, penalties and other charges
with respect thereto (collectively, "Taxes") due or claimed to be due from Arrow
have been paid except to the extent reserved against on Arrow's financial
statements, (d) no income tax return of Arrow has been audited by the applicable
Governmental Authority, and there are in effect no waivers of the applicable
statute of limitations for Taxes in any jurisdiction for Arrow for any period.
2.15 Environmental Matters. Except as disclosed in Section 2.15 of the
Disclosure Schedule, or where a breach or violation of any of the following
would not, individually or in the aggregate, have a Material Adverse Effect, to
the best knowledge of the Parent: (a) the business, assets and properties of
Arrow are and have been operated and maintained in compliance with all
applicable federal, state, city, county and local environmental protection laws
and regulations (collectively, the "Environmental Laws"), (b) no event has
occurred which, with or without the passage of time or the giving of notice, or
both, would constitute non-compliance by Arrow with, or a violation by Arrow of,
the Environmental Laws, and (c) Arrow has not caused or permitted
7
to exist, as a result of an intentional or unintentional act or omission, a
disposal, discharge or release of solid wastes, pollutants or hazardous
substances, on or from any site which currently is or formerly was owned,
leased, occupied or used by it, except where such disposal, discharge or release
was in compliance with the Environmental Laws.
2.16 Books and Records. To the best knowledge of the Parent, the books
of account, ledgers and records of Arrow accurately and completely reflect in
all material respects all information relating to its business, the nature,
acquisition, maintenance, location and collection of its assets, and the nature
of all transactions giving rise to its obligations or accounts receivable. The
minute books of Arrow fully set forth all action taken by its Board of
Directors, stockholders and, if any, executive committee (or other committee
thereof).
2.17 Brokers. Neither the Parent, Xxxxx or any of their respective
Affiliates (as that term is defined in the Securities Act of 1933, as amended,
or the rules and regulations promulgated thereunder) has entered or will enter
into any agreement pursuant to which Arrow or the Purchaser will be liable, as a
result of the transactions contemplated by this Agreement or the Asset Purchase
Agreement, for any claim of any person for any commission, fee or other
compensation as finder or broker and the Parent agrees to indemnify the
Purchaser for any liability resulting from any such agreement.
2.18 Definition of Knowledge. As used in this Article II, the term
"know," "knowledge" or "to the best knowledge," when applied to the Parent,
means the actual knowledge of Xxxxx or any other executive officer, legal or
financial representative of the Parent, Xxxxx, or Arrow or other Person engaged
by Xxxxx or the Parent to conduct a business, legal or financial due diligence
investigation relative to Arrow, its assets, business, properties, financial
condition and prospects, in connection with the transactions contemplated by the
Acquisition Agreement.
2.19 Extension of Representations and Warranties to Stockholder. On the
Closing Date, the Stockholder shall execute and deliver to the Purchaser a
joinder agreement, in the form of Exhibit B annexed hereto and made a part
hereof, pursuant to which the Stockholder shall (a) confirm the accuracy of all
of the foregoing representations and warranties of the Parent, and (b) shall
join and assume, jointly and severally with the Parent, all such representations
and warranties as at the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As a material inducement to the Parent and Xxxxx to enter into this
Agreement and to consummate the transactions contemplated hereby, as of the date
hereof and the Closing Date the Purchaser makes the following representations
and warranties to the Seller:
3.1 Corporate Status. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
8
3.2 Corporate Power and Authority. Purchaser has the corporate power and
authority to execute and deliver this Agreement, to perform its respective
obligations hereunder and to consummate the transactions contemplated hereby.
Purchaser has taken all action necessary to authorize its execution and delivery
of this Agreement, the performance of its respective obligations hereunder and
the consummation of the transactions contemplated hereby.
3.3 Enforceability. This Agreement has been duly executed and delivered
by Purchaser and constitutes a legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms.
3.4 No Violation. The execution and delivery of this Agreement by the
Purchaser, the performance by it of its obligations hereunder and the
consummation by them of the transactions contemplated by this Agreement will not
(i) contravene any provision of the organizational documents of the Purchaser,
(ii) violate or conflict with any law, statute, ordinance, rule, regulation,
decree, writ, injunction, judgment or order of any governmental authority or of
any arbitration award which is either applicable to, binding upon or enforceable
against the Purchaser, (iii) except as disclosed on Schedule 3.4 of the
Disclosure Schedule, conflict with, result in any breach of, or constitute a
default (or an event which would, with the passage of time or the giving of
notice or both, constitute a default) under, or give rise to a right to
terminate, amend, modify, abandon or accelerate, any instrument or contract
which is applicable to, binding upon or enforceable against the Purchaser, (iv)
result in or require the creation or imposition of any Lien upon or with respect
to any of the property or assets of the Purchaser, or (v) except as disclosed on
Schedule 3.4 of the Disclosure Schedule, require the consent, approval,
authorization or permit of, or filing with or notification to, any governmental
authority, any court or tribunal or any other person, except any applicable
filings required under the HSR Act.
3.5 Status and Knowledge.
(i) The Arrow Stock acquired pursuant to this Agreement is being
acquired for Purchaser's own account and not with a view to, or intention of,
distribution thereof in violation of the Securities Act of 1933, as amended (the
"Act"), or any applicable state securities laws, and the Arrow Stock will not be
disposed of in contravention of the Act or any applicable state securities laws.
(ii) Purchaser is an "Accredited Investor" as defined in Rule 501 of
Regulation D promulgated under the Act.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE CLOSING
4.1 Conduct of Business Pending the Closing. The Parent and the Parent
Stockholders jointly and severally covenant and agree that, between the date of
this Agreement and the Closing Date, the business of Arrow shall be conducted
only in, and shall not take any
9
action except in, the ordinary course of business consistent with past practice,
except with respect to (i) those actions outside the ordinary course of business
and inconsistent with past practice as to which the Parent provided notice to
and received the consent of the Purchaser (such consent not to be unreasonably
withheld) and (ii) the accelerated repayment of indebtedness and the
satisfaction and payment of budgeted items.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Further Assurances; Compliance with Covenants. Each party shall
execute and deliver such additional instruments and other documents and shall
take such further actions as may be necessary or appropriate to effectuate,
carry out and comply with all of the terms of this Agreement and the
transactions contemplated hereby.
5.2 Cooperation; No Disposition of Arrow Stock or Assets.
(a) Each of the parties agrees (i) to cooperate with the other in
the preparation and filing of all forms, notifications, reports and information,
if any, required or reasonably deemed advisable pursuant to any law, rule or
regulation in connection with the transactions contemplated by this Agreement,
(ii) to use its respective best efforts to agree jointly on a method to overcome
any objections by any governmental authority to any such transactions and (iii)
to cooperate with the tax planning objectives of the other party so long as such
cooperation will not adversely impact such party.
(b) Neither the Parent nor any of the Parent Stockholders shall
commit to the sale, disposition, hypothecation or encumbrance of any Arrow Stock
or Assets of the Asset Owners prior to the consummation of this Agreement
without the written consent of the Purchaser, and neither the Parent nor any of
the Parent Stockholders is under any obligation to dispose of, commit to dispose
of, encumber or commit to encumber the Arrow Stock or any Assets of the Asset
Owners prior to the consummation of this Agreement.
5.3 HSR Act and Other Actions. Each of the parties hereto shall (i) make
promptly (and in no event later than the execution of this Agreement) its
respective filings, if any, and thereafter make any other required submissions,
under the HSR Act (as defined hereafter), with respect to the transactions
contemplated hereby, and (ii) take all appropriate actions, and do, or cause to
be done, all things necessary, proper or advisable under any applicable laws,
regulations and contracts to consummate and make effective the transactions
contemplated herein, including, without limitation, seeking all licenses,
permits, consents, approvals, authorizations, qualifications and orders of any
governmental authority or applicable financial institution.
5.4 Confidentiality; Publicity. Except as may be required by law or as
otherwise permitted below, no party hereto or their respective affiliates,
employees, attorneys and advisors agents and representatives shall disclose to
any third party this Agreement or the subject matter or terms hereof without the
prior consent of the other parties. During the period that this
10
Agreement is in effect, the Purchaser may disclose this Agreement and related
financial information concerning the Companies only to Warburg Xxxxxx Xxxxx LLC,
provided that any such financial institution executes a confidentiality
agreement satisfactory to the Parent. In the event this Agreement is not
consummated, all documents containing any confidential information received in
connection with the performance of this Agreement shall be immediately returned
to the providing party and no copies thereof shall be retained by the returning
party. No press release or other public announcement related to this Agreement
or the transactions contemplated hereby shall be issued by any party hereto
without the prior approval of the other parties.
5.5 Certain Tax Matters. The Parent shall enforce the provisions of
Section 5.5 of the Acquisition Agreement and shall comply with its obligations
under such Section 5.5. In addition, the Parent shall provide the Purchaser, and
shall cause the Stockholder and each of the Asset Owners to provide the
Purchaser with such information and records as reasonably may be requested by
Purchaser in connection with the preparation of any such tax return, in the same
manner as Xxxxx and the Parent is required to provide such information to
Xxxxxxxxx under the Acquisition Agreement.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF PURCHASER
The obligations of Purchaser to effect the transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing of the
following conditions, any or all of which may be waived in whole or in part in
writing by Purchaser:
6.1 Accuracy of Representations and Warranties and Compliance with
Obligations. The representations and warranties of Parent and the Parent
Stockholders and (at the Closing) of the Stockholder contained in this Agreement
shall be true and correct at and as of the Closing with the same force and
effect as though made at and as of that time. Parent and the Parent Stockholders
shall have performed and complied with all of its and their respective
obligations required by this Agreement to be performed or complied with at or
prior to the Closing. Parent and Xxxxx shall have delivered to the Purchaser a
certificate, dated as of the Closing Date, certifying that such representations
and warranties are true and correct and that all such obligations have been
complied with and performed.
6.2 Delivery of the Arrow Stock. At the Closing, the Stockholder shall
duly endorse for transfer and deliver to the Purchaser (or its assignee) the
Arrow Stock and such other instruments of transfer of title as are necessary to
transfer to Purchaser (or its assignee) good and marketable title to the Arrow
Stock free and clear of any Liens.
6.3 HSR Act Waiting Period. Any applicable HSR Act waiting period shall
have expired or been terminated, or the Purchaser shall have received an
approval from the Federal Trade Commission., the Department of Justice or any
other court or governmental authority in form and substance satisfactory to
counsel to the Purchaser, to the effect that consummation of
11
the transactions contemplated by this Agreement and the Asset Purchase Agreement
shall not violate the HSR Act.
6.4 Consummation of Transactions Under Asset Purchase Agreement. The
acquisition of the Assets and other transactions contemplated by the Asset
Purchase Agreement shall have been consummated on the Closing Date, in a manner
which shall be satisfactory to the Purchaser.
6.5 Opinion of Counsel. The Purchaser shall have received an opinion
dated as of the Closing Date from counsel for the Parent, in form and substance
acceptable to Purchaser, to the effect that:
(i) Arrow is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida, is deemed a
United States citizen under the Federal Aviation Act of 1958, as amended,
together with the Aviation Regulations of the Federal Aviation
Administration and recodified in Subtitle VII of Title 49 of the United
States Code, and is authorized to carry on the business now conducted by
it and to own or lease the properties now owned or leased by it;
(ii) The Stockholder and the Parent have obtained all
necessary authorizations and consents of its Board of Directors and
shareholders to effect the transactions contemplated hereby;
(iii) The execution of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any agreement or instrument to which the Parent, the
Stockholder, Arrow, any of their subsidiaries is bound or to which any of
the property or assets of such entities and person is subject, nor will
such actions result in any violation of the provisions of the Articles of
Incorporation or Bylaws (or other organizational documents) of the Parent,
the Stockholder or Arrow or any statute or any order, rule or regulation
of any court or governmental agency or body of the United States, the
State of Florida, the Commonwealth of Puerto Rico having jurisdiction over
the Parent, the Stockholder, Arrow, any of their subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation of this Agreement;
provided, however, that any opinion with respect to any agreement or
instrument may be limited to the knowledge of such counsel after due
inquiry.
(iv) Such counsel does not know or have reason to believe that
there is any litigation, proceeding or investigation pending or threatened
which might result in any Material Adverse Effect on the Parent, the
Stockholder or Arrow, or which questions the validity of this Agreement;
12
(v) Such counsel does not know or have reason to believe that
any event has occurred or state of facts exists which would constitute a
breach of any of the representations and warranties made by the Parent or
the Stockholder pursuant to Article II of this Agreement; and
(vi) This Agreement is a valid and binding obligation of the
Parent and the Parent Stockholders, and enforceable against the Parent and
the Parent Stockholders in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights
generally or general equitable principles.
Provided, however, that counsel for Parent may rely on opinions by counsel
for Arrow with respect to all opinions regarding Arrow.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF PARENT AND PARENT STOCKHOLDERS
The obligations of the Parent and the Parent Stockholders to effect the
transactions contemplated hereby shall be subject to the fulfillment at or prior
to the Closing of the following conditions, any or all of which may be waived in
whole or in part in writing by the Parent Stockholders:
7.1 Accuracy of Representations and Warranties and Compliance with
Obligations. The representations and warranties of Purchaser contained in this
Agreement shall be true and correct at and as of the Closing with the same force
and effect as though made at and as of that time. Purchaser shall have performed
and complied with all of its obligations required by this Agreement to be
performed or complied with at or prior to the Closing. Purchaser shall have
delivered to the Parent a certificate, dated as of the Closing Date, certifying
that such representations and warranties are true and correct and that all such
obligations have been complied with and performed.
7.2 Consideration. At the Closing, Purchaser shall have paid the
Purchase Price for the Arrow Stock and the purchase price for the Assets under
the Asset Purchase Agreement to the Stockholder and to the Asset Owners, as
contemplated hereby and thereby.
7.3 HSR Act Waiting Period. Any applicable HSR Act waiting period shall
have expired or been terminated, or the Purchaser shall have received an
approval from the Federal Trade Commission., the Department of Justice or any
other court or governmental authority in form and substance satisfactory to
counsel to the Purchaser, to the effect that consummation of the transactions
contemplated by this Agreement and the Asset Purchase Agreement shall not
violate the HSR Act.
13
7.4 Opinion of Counsel. The Parent and the Parent Stockholders shall
have received an opinion dated as of the Closing Date from counsel for the
Purchaser, in form and substance acceptable to the Parent, to the effect that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware is
deemed a United States citizen under the Federal Aviation Act of 1958, as
amended, together with the Aviation Regulations of the Federal Aviation
Administration and recodified in Subtitle VII of Title 49 of the United
States Code, and is authorized to carry on the business now conducted by
it and to own or lease the properties now owned or leased by it;
(ii) The Purchaser has have obtained all necessary
authorizations and consents of its Board of Directors and shareholders to
effect the transactions contemplated hereby;
(iii) The execution of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any agreement or instrument to which the Purchaser, any of
its subsidiaries is bound or to which any of the property or assets of
such entities and person is subject, or, to the extent required, any
requisite consents have been obtained, nor will such actions result in any
violation of the provisions of the Articles of Incorporation or Bylaws (or
other organizational documents) of the Purchaser or any statute or any
order, rule or regulation of any court or governmental agency or body of
the United States or the State of Delaware having jurisdiction over the
Purchaser, any of their subsidiaries or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
consummation of this Agreement; provided, however, that any opinion with
respect to any agreement or instrument may be limited to the knowledge of
such counsel after due inquiry.
(iv) Such counsel does not know or have reason to believe that
there is any litigation, proceeding or investigation pending or threatened
which might result in any Material Adverse Effect on the Purchaser, or
which questions the validity of this Agreement;
(v) Such counsel does not know or have reason to believe that
any event has occurred or state of facts exists which would constitute a
breach of any of the representations and warranties made by the Purchaser
pursuant to Article III of this Agreement; and
(vi) This Agreement is a valid and binding obligation of the
Purchaser, and enforceable against the Purchaser in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
14
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights generally or general equitable principles.
ARTICLE VIII
INDEMNIFICATION
8.1 By the Parent and the Stockholder. The Parent hereby agrees that on
or after the Closing Date the Parent and the Stockholder shall jointly and
severally indemnify, protect, save and keep harmless the Purchaser and Arrow and
the officers and directors of the Purchaser and Arrow from and against, and on
written demand to pay or to reimburse the Purchaser and Arrow and the officers
and directors of the Purchaser and Arrow for the payment of, any and all
liabilities, obligations, losses, damages, deficiencies, interest, penalties,
additional amounts, claims (including, without limitation, claims arising out of
negligence or involving strict liability in tort or claims for any tax
liabilities), suits, actions, costs, expenses and disbursements (including,
without limitation, legal fees, costs and related expenses), of whatsoever kind
and nature ("Expenses") imposed on, incurred by or asserted against the
Purchaser, Arrow or either of them after the Closing Date (a) relating to any
breach of a representation or warranty or any covenant or agreement made by the
Parent or the Stockholder in or pursuant to this Agreement or (b) arising
directly or indirectly out of or in any way connected with the ownership,
possession, operation or control of any of the Arrow Stock or of the business of
Arrow at any time up to or including the Closing Date. The amount of any
indemnification payment from the Parent or the Stockholder to the Purchaser,
Arrow or any officer or director of the Purchaser or Arrow shall be equal to the
amount that, after the payment of all taxes imposed thereon, is equal to the
amount of the Expenses incurred by the Purchaser or Arrow.
8.2 By the Purchaser. The Purchaser hereby agrees to indemnify, protect,
save and keep harmless the Parent and the Stockholder from and against, and on
written demand to pay, or to reimburse the Parent or the Stockholder for the
payment of, any and all Expenses imposed on, incurred by or asserted against
Parent or the Stockholder after the Closing Date (a) relating to any breach of a
representation or warranty made by the Purchaser in this Agreement; or (b)
arising directly or indirectly out of or in any way connected with the
ownership, possession, operation or control of any of the Arrow Stock or of the
business of Arrow at any time following the Closing Date; provided, however,
that such Expenses are not judicially determined to have been attributable to
any breach of a representation, warranty or covenant of the Parent or the
Stockholder contained herein or any fraud or theft committed by the Parent or
the Stockholder. The amount of any indemnification payment from Purchaser to the
Parent or the Stockholder shall be equal to the amount that, after the payment
of all taxes imposed thereon, is equal to the amount of the Expenses incurred by
the Parent or the Stockholder.
15
8.3 Indemnification Procedures. The indemnification obligations under
this Agreement shall be subject to the following procedures:
(a) Third Party Claims. A party or parties hereto agreeing to be
responsible for or to indemnify against any matter pursuant to this Agreement is
referred to herein as the "Indemnifying Party" and the other party or parties
claiming indemnity is referred to as the "Indemnified Party." Promptly after
receipt by an Indemnified Party of notice of the commencement of any action
against it, such Indemnified Party will, if a claim is to be made against the
Indemnifying Party under such Section, give notice to the Indemnifying Party of
the commencement of such action, but the failure to notify the Indemnifying
Party will not relieve the Indemnifying Party of any liability that it may have
to any Indemnified Party, except to the extent that the Indemnifying Party
demonstrates that the defense of such action is prejudiced by the Indemnified
Party's failure to give such notice. With respect to any such action, the
Indemnifying Party will be entitled to participate and be kept informed and, to
the extent that it wishes (unless (i) the Indemnifying Party is also a party to
such action and the Indemnified Party determines in good faith that joint
representation would be inappropriate, or (ii) the Indemnifying Party fails to
provide reasonable assurance to the Indemnified Party of its financial capacity
to defend such action and provide indemnification with respect to such action),
to assume the defense of such action with counsel satisfactory to the
Indemnified Party and, after notice from the Indemnifying Party to the
Indemnified Party of its election to assume the defense of such action, the
Indemnifying Party will not, as long as it diligently conducts such defense, be
liable to the Indemnified Party for any fees of other counsel or any other
expenses with respect to the defense of such action, in each case subsequently
incurred by the Indemnified Party in connection with the defense of such action,
other than reasonable costs of investigation. If the Indemnifying Party assumes
the defense of an action, (i) no compromise or settlement of such claims may be
effected by the Indemnifying Party without the Indemnified Party's consent
unless (A) there is no finding or admission of any violation of law or any
violation of the rights of any Person and no effect on any other claims that may
be made against the Indemnified Party, and (B) the sole relief provided is
monetary damages that are paid in full by the Indemnifying Party; and (ii) the
Indemnified Party will have no liability with respect to any compromise or
settlement of such claims effected without its consent (which may not be
unreasonably withheld). If notice is given to the Indemnifying Party of the
commencement of any action and the Indemnifying Party does not, within thirty
(30) days after the Indemnified Party's notice is given, give notice to the
Indemnified Party of its election to assume the defense of such action, the
Indemnifying Party will be bound by any determination made in such action or any
reasonable compromise or settlement effected by the Indemnified Party.
Notwithstanding the foregoing, if an Indemnified Party determines in good faith
that there is a reasonable probability that an action may adversely affect it or
its affiliates other than as a result of monetary damages for which it would be
entitled to indemnification under this Agreement, the Indemnified Party may, by
notice to the Indemnifying Party, assume the exclusive right to defend,
compromise, or settle such action, but the Indemnifying Party will not be bound
by any determination of an action so defended or any compromise or settlement
effected without its consent (which may not be unreasonably withheld).
16
(b) Other Claims. A claim for indemnification for any matter not
involving a third-party claim may be asserted by notice to the appropriate
party.
8.4 Survival. (a) Each of the representations and warranties made by
Parents, Parent, Stockholders and Pruchaser made in this Agreement shall survive
for a period of five (5) years from and after the Closing Date.
(b) The indemnification obligations of each of the parties
hereto in respect of their respective covenants and agreements hereunder shall
survive the Closing Date indefinitely.
ARTICLE IX
DEFINITIONS
"Code" means the Internal Revenue Code of 1986, as amended, and treasury
regulations promulgated thereunder.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including, but not limited to, any conditional sale or other
title retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code or
comparable law or any jurisdiction in connection with such mortgage, pledge,
security interest, encumbrance, lien or charge) other than as expressly created
under this Agreement or any agreement or instrument attached as an Exhibit
hereto; provided, however, that a leasehold interest shall not be deemed a
"Lien".
"Tax Return" means any tax return, filing or information statement
required to be filed in connection with or with respect to any Taxes.
ARTICLE X
TERMINATION
10.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date: (a) by mutual written consent of the parties hereto at any
time prior to the Closing; or (b) by either the Purchaser or the Parent if the
Closing shall not have occurred on or before Match 15, 1999; provided, that if
the waiting period under the HSR Act shall not have expired or terminated by
March 15, 1999 subject only to (i) the Purchaser extending a loan to the Parent
pursuant to the Loan Agreement dated of even date herewith and (ii) the Parent's
consummation of the transactions contemplated by the Acquisition Agreement with
Xxxxxxxxx, the parties hereto shall extend such Closing hereunder to a date
which shall be twenty-four (24) hours after the
17
expiration or termination of such HSR waiting period, or receipt of an approval
from the Federal Trade Commission., the Department of Justice or any other court
or governmental authority in form and substance satisfactory to counsel to the
Purchaser, to the effect that consummation of the transactions contemplated by
this Agreement and the Stock Purchase Agreement shall not violate the HSR Act;
provided, that, absent mutual agreement of the Parent and the Purchaser to
extend such date, the Closing Date shall not occur later than April 1, 1999.
10.2 Effect of Termination. In the event of termination of this Agreement
pursuant to Section 9.1, this Agreement, except for the agreements contained in
Section 5.4 herein, shall forthwith become void and of no further force and
effect and the parties shall be released from any and all obligations hereunder.
10.3 Specific Performance. In the event that for any reason the Purchaser
shall be prevented or delayed from consummating the Closing hereunder on the
Closing Date by reason of any act of omission or commission by any of the Parent
Stockholders, the Parent or any Subsidiary of the Parent, the parties hereto do
hereby agree that the Purchaser would have no adequate remedy and law.
Accordingly, in such event and in addition to any other rights at law or in
equity under this Agreement, the Stock Purchase Agreement or the Loan Agreement,
the Purchaser shall have the right to apply to and obtain from any court of
competent jurisdiction an order of specific performance to compel the Parent and
the Parent Stockholders and any Subsidiary of the Parent to consummate all of
the transactions contemplated by this Agreement and by the Asset Purchase
Agreement.
ARTICLE XI
GENERAL PROVISIONS
11.1 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission if such transmission is confirmed by
delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery, to the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party shall designate
in writing to the other party):
(a) if to Parent and the Parent Stockholders to:
International Air Leases of PR, Inc.
Caribbean Airport Facilities, Inc.
000 Xxxx. Xxxxxx Xxxxxxx, Xxxxx #0
I.M.M. Int'l Airport
Carolina, P.R. 00979-1536
Attn: Xxxxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
18
with a copy to:
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxxx & Xxxxxxx
American International Plaza
14th Floor
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
(b) if to the Purchaser to:
X. Xxxxx Fine
Fine Air Services Corp.
0000 X.X. 00xx Xxxxxx
Building 700
P.O. Box 523726
Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxxxxxx X. Xxxxx
Xxxxxxxxx Xxxxxxx.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 212-801-6400
Notice shall be deemed given on the date sent if sent by facsimile
transmission and on the date delivered (or the date of refusal of delivery) if
sent by overnight delivery or certified or registered mail.
11.2 Entire Agreement; No Third Party Beneficiaries. This Agreement
(including the exhibits and schedules attached hereto) and other documents
delivered at the Closing pursuant hereto, contains the entire understanding of
the parties in respect of its subject matter and supersedes all prior agreements
and understandings (oral or written) between or among the parties with respect
to such subject matter. The parties agree that prior drafts of this Agreement
shall not be deemed to provide any evidence as to the meaning of any provision
hereof or the intent of the parties with respect thereto. This Agreement is not
intended to confer upon any Person, other than the parties hereto, any rights or
remedies hereunder.
19
11.3 Expenses. Each of the Purchaser and the Parent and Xxxxx shall be
responsible for and pay their own fees and expenses, including their own counsel
fees, incurred in connection with this Agreement or any transaction contemplated
hereby.
11.4 Amendment; Waiver. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from
any course of dealing between the parties. No extension of time for performance
of any obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other obligations
or any other acts. The rights and remedies of the parties under this Agreement
are in addition to all other rights and remedies, at law or equity, that they
may have against each other.
11.5 Binding Effect; Assignment.
(a) The rights and obligations of this Agreement shall bind and
inure to the benefit of the parties and their respective successors and assigns.
Nothing expressed or implied herein shall be construed to give any other person
any legal or equitable rights hereunder other than the officers and directors of
the Companies as specifically set forth in Article VII hereto and their
respective successors and permitted assigns.
(b) The rights and obligations of this Agreement may be assigned
by Purchaser to any successor or subsidiary controlled by Purchaser. Except as
expressly provided herein, the rights and obligations under this Agreement may
not be assigned by the Parent or Xxxxx, without the prior written consent of
Purchaser.
11.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument. A telecopy signature of any party shall
be considered to have the same binding legal effect as an original signature.
11.7 Interpretation. When a reference is made in this Agreement to an
article, section, paragraph, clause, schedule or exhibit, such reference shall
be deemed to be to this Agreement unless otherwise indicated. The headings
contained herein and on the schedules are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement or the
schedules.
11.8 Governing Law; Jurisdiction; Severability. This Agreement shall be
construed in accordance with and governed for all purposes by the laws of the
State of Florida applicable to contracts executed and to be wholly performed
within such State. With respect to any action that may arise under this
Agreement, the parties hereto irrevocably submit and consent to the exclusive
jurisdiction of the federal court located within Miami-Dade County, State of
Florida
20
(or if such court lacks jurisdiction, the state court located therein). If any
word, phrase, sentence, clause, section, subsection or provision of this
Agreement as applied to any party or to any circumstance is adjudged by a court
to be invalid or unenforceable, the same will in no way affect any other
circumstance or the validity or enforceability of any other word, phrase,
sentence, clause, section, subsection or provision of this Agreement. If any
provision of this Agreement, or any part thereof, is held to be unenforceable
because of the duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall have the power to
reduce the duration and/or area of such provision, and/or to delete specific
words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced.
11.9 Arm's Length Negotiations. Each party herein expressly represents
and warrants to all other parties hereto that (a) before executing this
Agreement, said party has fully informed itself of the terms, contents,
conditions and effects of this Agreement; (b) said party has relied solely and
completely upon its own judgment in executing this Agreement; (c) said party has
had the opportunity to seek and has obtained the advice of counsel before
executing this Agreement and, with respect to Parent and the Parent
Stockholders, had consulted with attorneys and accountants concerning the
domestic and foreign legal and financial consequences of entering into this
Agreement; (d) said party has acted voluntarily and of its own free will in
executing this Agreement; (e) said party is not acting under duress, whether
economic or physical, in executing this Agreement; and (f) this Agreement is the
result of arm's length negotiations conducted by and among the parties and their
respective counsel.
11.10 Waiver of Jury Trial. IN ANY CIVIL ACTION, COUNTERCLAIM, OR
PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS OR
RELATES TO THIS AGREEMENT, ANY TRANSACTIONS CONTEMPLATED HEREUNDER, THE
PERFORMANCE HEREOF OR THE RELATIONSHIP CREATED HEREBY, WHETHER SOUNDING IN
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, TRIAL SHALL BE TO A COURT OF
COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT (STATUTORY, CONSTITUTIONAL, COMMON LAW OR OTHERWISE) IT MAY HAVE TO A
TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE WAIVER OF THE OTHER PARTIES'
RIGHT TO TRIAL BY JURY. NO PARTY HAS MADE OR RELIED UPON ANY ORAL
REPRESENTATIONS BY ANY OTHER PARTY REGARDING THE ENFORCEABILITY OF THIS
PROVISION. EACH PARTY HAS READ AND UNDERSTANDS THE EFFECT OF THIS JURY WAIVER
PROVISION.
[Signatures On Following Page]
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
INTERNATIONAL AIR LEASES OF PR, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx, President
The Parent Stockholders:
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx
FINE AIR SERVICES CORP.
By: /s/ X. Xxxxx Fine
--------------------------------------
X. Xxxxx Fine, Chairman
