AGREEMENT OF PURCHASE AND SALE OF ASSETS
This Agreement of Purchase and Sale of Assets (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"); and XXXXXXX X.
XXXXX ("Xxxxx).
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, inch, a Delaware corporation ("IAL"),
Aircraft Leasing, Inc., a Delaware corporation ("ALI"), and N304 Corp., a
Delaware corporation (`Y304 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. Immediately following the Parent's acquisition of the capital stock of
IAL, ALI and N304 Corp., the Purchaser will acquire from Air Flue Operations,
Inc., a Delaware corporation (the "Stockholder"), and the Parent and Xxxxx shall
cause the Stockholder to sell to the Purchaser, all of the issued and
outstanding shares of capital stock (the "Arrow Stock") of Arrow Air, Inc., a
Florida corporation ("Arrow"), all on the terms and subject to the conditions
contained in a stock purchase agreement among the Purchaser, the Parent and
Xxxxx, dated of even date herewith (the "Stock Purchase Agreement").
C. Simultaneous with the consummation of the Purchaser's acquisition of
the Arrow Stock pursuant to the Stock Purchase Agreement, it is contemplated
that on the "Closing Date" (as defined in this Agreement and in the Stock
Purchase Agreement) Xxxxx and the Parent shall cause the Stockholder, IAL, ALI
and N304 Corp. (collectively, the "Companies"), and each of their direct and
indirect subsidiaries or partnerships in which the Companies or such
subsidiaries have a beneficial interest who shall own or operate the "Assets"
specified in this Agreement, including, without limitation, AAA Interair, Inc.
(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 respective right, title
and interest in and to the Assets specified herein and in the Exhibits to this
Agreement, all on the terms and subject to the conditions contained in this
Agreement.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants and
agreements contained herein. the parties hereto agree as follows:
ARTICLE I
THE ASSETS AND LIABILITIES: CLOSING AND PURCHASE PRICE
1.1 Purchase and Xxx of Assets. Subject to the terms and conditions of
this Agreement, at the Closing (as defined in Section 12), Purchaser shall
acquire from the Asset Owners, and the Asset Owners shall sell, convey,
transfer, assign and deliver (collectively, "Transfer") to Purchaser or its
permitted assignees (other than those assets owned by Arrow, the possession of
which will be transferred pursuant to the Stock Purchase Agreement), all, and
not less than all, of (i) the equipment, aircraft, engines, inventories,
components, pans, rotables, spare parts and the other assets and properties
which shall be specified on Exhibit A annexed hereto and made a part hereof, and
(ii) all other assets and properties, tangible, intangible, real, personal or
mixed, which are owned or leased by the Asset Owners and used in connection with
Arrow's airline business and operations, including, but not limited to, all
spare engines and inventories, all ground support equipment, all cargo handling
equipment and all other assets and business processes (infrastructure)
supporting the airline operations, including Arrow's operating certificate,
route authorities, computer systems, leaseholds and leasehold improvements,
including, without limitation, those assets specifically listed on Exhibit A
attached hereto, wherever located (hereinafter collectively referred to as the
"Assets"). The Assets shall not include the "Excluded Assets" defined in Section
1.4 hereof. The Assets shall be Transferred to the Purchaser on the Closing
Dote, free and clear of any and all Liens (as defined hereafter).
(a) On the "Closing Date" (as herein defined), as a result of its
purchase of the Arrow Stock pursuant to the Stock Purchase Agreement and the
Assets pursuant to this Agreement, it is contemplated hat the Purchaser would
acquire good and marketable ownership and title to:
(i) three (3) L1011-200F aircraft, one (1) L1011-500P aircraft and
thirteen (13) DC8 aircraft,
(ii) one (1) complete and airworthy Burbank Stage III hushkit,
(iii) ninety-seven (97) serviceable and repairable Xxxxx & Xxxxxxx
JT3D engines (as set forth on Exhibit B) together with new
JT3D engine parts; and
(iv) all other "serviceable," "repairable" or in process of repair
Xxxxx & Whitney JT8D, Rolls Royce RB211 and General Electric
CF6 aircraft engines, including but not limited to those set
forth on Exhibit B-2 annexed hereto and any other aircraft
engines not specifically referred to in the Excluded Assets,
and
(b) To the extent any of the Assets arc currently leased from IAL or
any of the other Asset Owners, such leases shall terminate at Closing and
unencumbered title to the Assets would be conveyed to the Purchaser.
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(c) The Assets shall be acquired by the Purchaser on an "as is"
basis; and no warranty of their condition, merchantability or suitability for
any specific use shall be extended to the Purchaser in connection therewith,
except for such warranty of title, free of liens, as is represented and
warranted in Section 2.1.
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 Stock Purchase Agreement (the "Closing")
on or before March 15, 1999, but in no event later than April 1, 1999 (unless
such claw shall be extended pursuant to the provisions hereof), at the offices
of Xxxxxxxxx Xxxxxxx, P.A. in Miami, Florida, or such oilier 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
Assets shall occur simultaneous with the closing of the purchase of the Arrow
Stock under the Stock Purchase Agreement, and such Closings shall take place on
a date which shall be within five Business Days 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 Asset Owners at the Closing in exchange for the Assets
shall be equal to $115,000,000, less the sum of (i) the consideration paid to
the Stockholder for the Arrow Stock pursuant to the Stock Purchase Agreement,
(ii) any amounts required to be paid by the Purchaser on the Closing Date or
thereafter to satisfy any Liens on the Assets and (iii) any adjustments as may
be determined pursuant to subsection 1.3(b) below.
(b) In the event that on or after November 12, 1998 and prior to the
Closing Date JAL, ALI, N304 Corp. or Arrow sells, disposes of, or otherwise
ceases to possess any of its equipment, aircraft, engines, inventory,
components, parts, rotables, spare parts, spare engines, ground support
equipment, cargo handling equipment and business processes (infrastructure)
supporting the airline operations, computer systems or other assets of the type
listed on Exhibit A, the Purchase Price shall be decreased, dollar for dollar,
for the amount of sales or other related proceeds received by such Company or
Companies in connection with such sale (or, in the event of a disposition or
other instance where the Company cents to possess such asset(s), at the Closing
Date, the Purchase Price shall be decreased dollar for dollar by the fair market
value at the time of the disposition of the asset(s) disposed of). To the extent
the Purchase Price, pursuant to this subsection 1.3(b) should have been adjusted
(or adjusted further) but, as of the Closing Date was not, both Parent and Xxxxx
shall each be jointly and severally obligated to pay to Purchaser, via wire
transfer or certified check, the amount of such adjustment (or increased
adjustment) within 5 days of Purchaser's demand of such payment (the "Post
Closing
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Adjustment"). In connection therewith, the parties hereto agree that Purchasers
right to demand, and Parent and Xxxxx'x obligation to pay, a Post Closing
Adjustment hereunder shall survive for a period of six (6) months after the
Closing Date.
(c) 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 Excluded Assets. The Assets to be acquired by the Purchaser on the
Closing Date shall expressly exclude the following (the "Excluded Assets"): (a)
all cash, marketable securities, bank accounts and related cash items of Arrow
and the Asset Owners; (b) all accounts receivable or other rights of the Arrow
and/or Asset Owners to receive payments from customers or lessees as of the
Closing Date (the "Receivables"); provided, however, that the Receivables shall
not include any lease obligations or other debts, accruals or liabilities in
existence prior to Closing owed to any Asset Owner (i) by Arrow under any
operating or capitalized lease to which Arrow shall be the lessee, or (ii)
otherwise relating to the Assets, all of which shall be deemed to be Excluded
Liabilities hereunder and (c) those fourteen (14) Xxxxx & Whitney engines set
forth at Exhibit B-3. All such Excluded Assets shall be retained by the
applicable Asset Owners on and following the Closing Date.
1.5 Assumed Liabilities. On the Closing Date, the Purchaser shall assume
and be responsible to pay for and perform only the obligation to pay for all "C"
checks, "D" checks, and overhauls and repairs on engines and/or rotables which
are in process as at the Closing (the "Assumed Liabilities"); provided, that all
such Assumed Liabilities with respect to such work in process shall be specified
with respect to the specific aircraft, engines and rotables in question on
Schedule 1.5 to the Disclosure Schedule annexed hereto as Exhibit C and made a
part hereof (the "Disclosure Schedule").
1.6 Excluded Liabilities. Except for the Assumed Liabilities expressly set
forth in Section 1.5 above and on Schedule 1-5 to the Disclosure Schedule,
neither the Purchaser, Arrow, nor any other subsidiary, division or other
"Affiliate" (as that term is herein defined) of the Purchaser shall assume or
otherwise be liable or responsible to pay or perform any obligations, claims,
liabilities, costs, debts, charges, accruals penalties, fines, expenses or other
obligations of any kind or description relating to (a) the ownership and/or
operation of the Parent, the Companies, and any other direct or indirect
Subsidiary of the Parent at any time, whether prior to or following the Closing
Date, or (6) the ownership or operation of the Assets, ox the business of Arrow
at any time up to and including the Closing Date (collectively, the "Excluded
Liabilities"). The Excluded Liabilities shall include, without limitation, all
accounts payable, accrued expenses, indebtedness for money borrowed, capitalized
lease obligations, and any accrued obligations to pay for all "C" checks, "D"
checks, and overhauls and repairs on engines and/or rotables which have been
completed as at the Closing (the
1.7 Delivery of Assets. At the Closing, against payment by the Purchaser
of the Purchase Price payable pursuant to Section 1.3 above, the Parent and
Xxxxx shall cause the Asset Owners to deliver to the Purchaser, pursuant to such
bills of sale, assignments, deeds, leases and other instrument of transfer as
shall be required by Purchaser and its counsel (the
4
"Conveyancing Documents") good and marketable title in and to all, and not less
than all, of the Assets, free and clear of any and all Liens.
ARTICLE II
As a material inducement to the Purchaser to enter into this Agreement and
to consummate the transactions contemplated hereby and pursuant to the Stock
Purchase Agreement, as of the dare hereof and the Closing Date, the Parent
hereby makes the following representations and warranties to the Purchaser:
2.1 Title to Assets.
(a) As of the date hereof, and on the Closing Date. The Asset Owners
is and will be record and beneficial owners of all of the Assets free and clear
of any Lien. The Conveyancing Documents to be delivered by the Asset Owners to
the Purchaser at the Closing will be sufficient to transfer all of the Asset
Owners' right, title and interest, legal and beneficial, in the Assets to the
Purchaser;
(b) As of the date hereof, the Asset Owners will own, free and clear
of any Liens, all of the Assets to be purchased by the Purchaser under this
Agreement.
2.2 Enforceability. This Agreement has been duly executed and delivered by
each of the Parent and Xxxxx and constitutes a legal, valid and binding
obligation of the Parent and Xxxxx, enforceable against each of them in
accordance with its terms.
2.3 No Other Rights. No Person, other than the Asset Owners as at the date
hereof, and at the Closing will possess any rights, options, calls, leasehold
interests, easements, or other agreements and understandings with respect to the
ownership of or rights to use any of the Assets.
2.4 Organization, Good Standing and Qualification.
(a) The Parent is & corporation duly organized, mildly existing and
in good standing under the laws of Puerto Rico and the Asset Owners are
corporations duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of incorporation or organization.
(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. The Parent and Tin 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 Asset Owners
shall have all
5
requisite power and authority to sell the Assets 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 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 Asset
Owners 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 Asset Owners or Arrow, complete and correct
copies of which has been provided to counsel to the Purchaser; or
(c) constitute a default (with or without notice or lapse of dine 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 Asset Owners or Arrow is or
hereafter may be a party or by which the Asset Owners. Arrow or their respective
properties are or hereafter may be bound.
2.6 Subsidiaries. Except as disclosed in Section 2.6 of the Disclosure
Schedule, prior to the Closing the Asset Owners 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,
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"Actions") pending or, to the best knowledge of the Parent, threatened against
the Asset Owners, or affecting any of the Assets (including, without limitation,
any of its Permits) which individually or in the aggregate would have a Material
Adverse Effect, nor to the knowledge of the Parent is there any basis for any
such Action. To the best knowledge of the Parent, there is no Action against any
of the Asset Owner'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 the
Asset Owners) involving the prior employment of any employees of the Asset
Owners, their use in connection with the Asset 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 the Asset Owners nor any of their respective Assets, nor, in connection
with their businesses, any of the Asset Owners' 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 any of the Asset Owners
currently pending or which Arrow intends to initiate which could have a Material
Adverse Effect.
2.8 Compliance with Laws: Permits.
(a) Assuming compliance with the HSR Act, the sale of the Assets by
the Asset Owners to the Purchaser will be in compliance with all applicable
federal and state securities laws.
(b) To the best knowledge of the Parent. the Asset Owners have has
not violated or failed to comply with any statute, law, ordinance, rule,
regulation or policy of any Governmental Authority (collectively, "laws") to
which they or any of their Assets is subject, except where non-compliance with
any such Laws would nor, 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 art airline (collectively, the "Laws") owned or
otherwise possessed by the Asset Owners, To the best knowledge of the Parent the
Permits listed on Schedule 2.8 represent all of the Permits that are required
for the operation and use of the Assets for the conduct of Arrow's business as
presently conducted.
(d) All Permits listed on Schedule 28 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
7
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. Wit 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 the Asset Owners nor, to the best knowledge of
the Asset Owners, 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 the Asset Owners.
2.9 Absence of Certain Changes or Events. To the best knowledge of the
Parent, other than the effect of those transactions consummated by this
Agreement, the Stock Purchase Agreement and the Acquisition Agreement, there has
been no change in the business, properties, operations, earnings, assets,
liabilities, condition (financial or otherwise) or prospects of the Asset
Owners, 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 or Assets.
2.10 Contracts. True and correct copies of all contracts, agreements,
notes, instruments, franchises, leases, licenses, commitments, arrangements or
understanding, written or, to the knowledge of the Parent, oral (collectively,
"Contracts") to which the Asset Owners are a party which are material to the
Assets or the business of Arrow and which are in the possession of the Parent
have been made available to the Purchaser and 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 Asset
Owners, Arrow and the other parties thereto; (b) the Asset Owners, 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 the Asset Owners, 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 Stock Purchase Agreement.
2.11 Insurance. The Asset Owners have in full force and effect all
insurance policies as are required for the ownership, operation or use of the
Assets, 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 Assets.
2.12 Labor Union Activities. Except as disclosed on Section 2.12 of the
Disclosure Schedule, no employee of any of the Asset Owners is represented by
any
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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 the Asset Owners. There is no strike or other labor dispute
involving the Asset Owners 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 the Asset Owners. 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 the Asset Owners.
2.13 ERISA. Except as disclosed on Section 2.14 of the Disclosure
Schedule, to the best knowledge of the Parent none of the Asset Owners maintains
(nor have ever maintained during the past seven years) nor do they have (nor
have they 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 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 the Assets Owners with respect to the Assets in any jurisdiction
have within the past seven years been timely filed (collectively, "Returns"),
(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 have been paid except to the extent reserved against on Asset
Owners' financial statements, (d) no such income tax return 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 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 Assets 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 with, or a violation by any of the Asset Owners of, the
Environmental Laws, and (c) the Asset Owners has not caused or permitted 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 Fines end Penalties. To the best knowledge of the Parent, all fines,
penalties or assessments by the DOT, the FAA or any related state or federal
agency (including but riot limited to Department of Justice fines and penalties)
having jurisdiction over the use of the
9
Assets or the operation of the airline business of Arrow have been fully paid by
Arrow and the Asset Owners. Schedule 2.16 to the Disclosure Schedule lists and
describes all such fines or penalties imposed upon Arrow or the Asset Owners by
such Governmental Agencies in the last three years.
2.17 No Brokers. the Parent, Xxxxx or any of their respective Affiliates
(as defined) 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 Stock 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 or Xxxxx, or oilier Person engaged by Xxxxx or the
Parent to conduct a business, legal or financial due diligence investigation
relative to the Assets, in connection with the transactions contemplated by the
Acquisition Agreement.
ARTICLE III
As a material inducement to the Parent and Xxxxx to enter into this
Agreement and to consummate the transactions contemplated hereby, as of the daze
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.
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, (be performance by it of its obligations hereunder and the
consummation by them of the transactions contemplated by this Agreement will not
(3) 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
10
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.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE CLOSING
4.1 Conduct of Business by the Asset Owners Pending the Closing. The
Parent covenants and agrees that, between the date of this Agreement and the
Closing Date, the business of Arrow and the ownership, use and operation of the
Assets by the Asset Owners shall be conducted only an, and shall not take any
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 pest 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 oil 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 (in)
to cooperate with the tax planning objectives of the other party so long as such
cooperation will not adversely impact such party.
11
(b) Neither the Parent nor Xxxxx 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 Xxxxx 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 Action. 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)1 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, prior to the Closing Date, no party hereto or their
respective affiliate; employees, agents, attorneys, financial advisors 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 Agreement is in effect, the Purchaser may disclose this
Agreement and related financial information concerning the Companies only to
Warburg Dillon Read, 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. Prior to the Closing Date, 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 Matter. The Parent shall enforce the provisions of Section
5.5 of the Acquisition Agreement and shall comply with its obligations under
such Section 55. In addition, the Parent shall provide the Purchaser and shall
cause the Asset Owners 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.
5.6 Make Whole Obligations of the Parent and the Asset Owners. Each of the
Parent and the Asset Owners do hereby covenant and agree with the Purchaser to
the following terms and conditions related to the Assets:
(a) The Purchaser, the Parent and urn have jointly agreed that the
specified Assets set forth below have the agreed upon fair marker values set
forth in the following table:
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Asset item No. Agreed Upon
in Exhibit A Quantity Asset Description Value
-------------- -------------- -------------- -------------- ---------------
Xx. 0 Xxx (0) XX0-00 Xxxxxxxx X00000 and $ 8,000,O00
N66656
No. 10 Ninety Seven Aircraft engines JT3D and new
JT3D engine parts $35,000,000
Subtotal $43,000,000
No. 26 and One (1) Engine Shop IAL engine shop
No. 11 and residual engines
and spare parts not
listed above $10,000,000
No. 27 One (1) Wheel and brake shop $ 5,000,000
No. 29 Inventories AAA Interair new
and used inventories
of aircraft and
engine parts not
listed above $25,000,000
-----------
Subtotal $40,000,000
Total $83,000,000
===========
(b) The Purchaser shall have the right (but not the obligation) to
require the Parent and each of the Asset Owners (collectively, the "Xxxxx
Group"), to offer, on behalf of the Purchaser, some or all of the Assets
specified in Section 5.6(a) above, for sale & their agreed upon fair market
values, in the event and to the extent that Purchaser notifies the Xxxxx Group
not later than ninety (90) days following the Closing Date that it desires that
the Xxxxx Group offer any or all of the above specified Assets for sale (the
"Purchaser Sale Notice"), the Xxxxx Group will, on behalf of the Purchaser,
promptly offer such Assets for sale. The Purchaser Sale Notice shall specify
which of the above Assets are to be offered for sale. The Xxxxx Group agrees not
to offer any of the above specified Assets for sale at prices which shall be
Less than the "Agreed Upon Price" (as herein defined). The Agreed Upon Price
shall be equal to ninety (90%) percent of the agreed upon fair market values
attributable to such Assets, as set forth in the table in Section 5.6(a) above
(the "Agreed Upon Value"), unless otherwise agreed to by the Purchaser. To the
extent that the Purchaser does not provide the Xxxxx Group with a Purchaser Sale
Notice instructing the Xxxxx Group to sell any of the above specified Assets
within the aforesaid ninety (90) -day period following the Closing Daze, such
Assets will not be subject to the "Make Whole" obligations of the Xxxxx Group
set forth herein. As used herein, an "offer for sale" shall mean and include (I)
offering any or all of the above Assets for sale to any other participant in the
airline industry, either directly or through recognized industry brokers of such
Assets or other agents, (ii) advertising such Assets as being for sale in any
recognized industry publications, or (iii) such other additional procedures as
Fine Air and the Xxxxx Group may mutually agree upon.
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Unless otherwise agreed to by the Purchaser, all offers for sale for any of the
above-specified Assets shall be in all-cash transactions only and the entire
proceeds from such sale, including but not limited to any amounts in excess of
the Agreed Upon Price, shall be the property of the Purchaser.
(c) In the event and to the extent dun any or all of the Assets
specified in Section 5.6(a) hereof are timely offered for sale by the Xxxxx
Group on behalf of the Purchaser (the "Offered Assets") and by a date which
shall be not later than ninety (90) days from the date of the Purchaser Sale
Notice (the "Make Whole Payment Date"), the Purchaser shall not have been able
to either (i) consummate a cash sale of the Offered Assets, or (ii) have entered
into a binding cash sale agreement with a financially reputable acquiror of such
Offered Assets, in either case, at a purchase price for the Offered Assets which
shall be equal to or greater than the Agreed Upon Price, then the Xxxxx Group
shall pay to the Purchaser by not later than the Make Whole Payment Date, the
cash amount (the "Make Whole Amount") as shall be equal to the amount by which
the actual price paid or committed to be paid for such Asset(s) shall be less
than the Agreed Upon Price(s) for such Asset(s).
Notwithstanding the foregoing, the Make Whole Amount with respect to the
Engine Shop, the Wheel and Brake Shop and the inventories described in Section
5.6(d) below shall be calculated only (i) if such specified Assets shall be
Offered Assets, and (ii) to the extent that the aggregate amounts received from
the sale of such Offered Assets in the aggregate shall be less than the $36
million aggregate Agreed Upon Price for all such specified Assets. it is further
understood and agreed that the Agreed Upon Value of the AAA Interair, Inc. new
and used inventories of aircraft and engine parts referred to in Section 5.6(a)
and not otherwise listed in Asset Item No. 10 of Exhibit A (the "AAA Interair
Inventories") shall be increased or decreased, as the case may be, and the
applicable Agreed Upon Prices therefor shall similarly be increased or
decreased, to the extent of any purchases and dispositions (and, to the extent
the Purchaser wishes to retain certain of such assets, it being expressly agreed
by the parties chat such retention shall be treated as a disposition by the
Purchaser for purposes of adjusting the Agreed Upon Prices set forth herein) of
such AAA Interair Inventories between the Closing Date and the Make Whole
Payment Date. Similarly, it is further understood and agreed that the Agreed
Upon Value of each of the items numbers "7" (the two DC8-62 Aircraft) and "10"
(the ninety-seven aircraft engines) listed in the "Asset Item No." column of
Section 5.6(a) above shall be increased or decreased, as the case may be, and
the Applicable Agreed Upon Prices therefor shall similarly be increased or
decreased, to the extent of any purchases and dispositions of such assets
between the Closing Date and the Make Whole Payment Date.
(d) In the even! and to the extent that the Xxxxx Group shall, for
any reason, fail or refuse to pay the Make Whole Amount in cash by the Make
Whole Date, in addition to Purchaser's right to retain the specific Assets
indicated in Column "A" of the chart below, the Xxxxx Group shall deliver to the
Purchaser good and marketable title, free of all Liens, to the specific
additional aircraft specified in Column "C" of the chart below (the "Additional
Assets"); it being understood that delivery of the Additional Assets shall
constitute payment by the Xxxxx Group of the applicable Make Whole Amounts which
shall be allocated and attributable to the specified Asset(s) described below.
Such Additional Assets are as follows:
14
A B C
- - -
Make Whole Amount
Additional Assets (as
more full set forth
Asset Description on Exhibit B-4)
------------------ ------------------- ------------- ---------------------
DC8-62 Aircraft N42084 and N66656 DC8-62 aircraft
(reg. no.
N8974U)
Aircraft engines JT3D and new parts DC8-63F aircraft
(reg. no.
N345JW)
Engine Shop LAL engine shop and
residual engines and
spare parts and
Wheel and Brake and
Shop
Inventories AAA Interair new and DC10-30CF PP-
used inventories of VMU
aircraft and engine parts (reg. no. 47842)
5.7 The Security Agreement. As collateral security to secure payment and
performance by the Xxxxx Group of the Make Whole Obligations set forth in
Section 5.6, the Parent and the Asset Owners obligation to indemnify the
Purchaser, Arrow and others pursuant to Article VIII hereof, Parent and
Stockholders' obligation to indemnify the Purchaser and Arrow pursuant to
Article VIII of the Stock Purchase Agreement, on the Closing Date, the Xxxxx
Group shall grant to the Purchaser a first priority Lien and security interest
in and to the Additional Assets designated as the DC8-62 (Registration No.
N8974U), DC8-63F (Registration No. N345JW) and DC10-30F PP-VMU (Registration No.
47842), all pursuant to the terms and conditions of the Mortgage and Security
Agreement, in the form of Exhibit D annexed hereto and made a part hereof (the
"Security Agreement"), The Security Agreement shall terminate as provided in
Section 8.4(c) hereof.
5.8 Management Agreement On the Closing Date, the Parent and the Asset
Owners shall enter into management agreement(s) with Arrow and the Purchaser, in
substantially the form of Exhibit E annexed hereto (the "Management Agreement"),
pursuant to which the Purchaser and Arrow shall for the term of such Management
Agreement:
15
(a) collect (or the account of the Parent and the Asset Owners, the
Receivables applicable to Arrow and its customers, and AAA Interair and
its customers and
(b) pay or remit to the applicable creditor of Arrow and/or AAA
Interair (as the case may be) all accounts payable, accrued expenses and
accrued obligations applicable to all "C" checks, "D" checks and overhauls
and repairs of engines and/or rotables which have been completed as at the
Closing Date, which are Excluded Liabilities hereunder.
5.9 Extension of Representations, Warranties and Covenants. On the Closing
Date, Xxxxx and each of the Asset Owners shall execute and deliver to the
Purchaser a joinder and assumption agreement, in the form of Exhibit F annexed
hereto and made a part hereof (the "Joinder and Assumption Agreement"), pursuant
to which (a) Xxxxx and each of the Asset Owners shall confirm the accuracy of
all of the foregoing representations and warranties of the Parent, and (b) each
of the Asset Owners shall join in and assume, jointly and severally with the
Parent, all of the various covenants, undertakings and agreements of the Parent
contained in this Agreement and in each Exhibit hereto, including, without
limitation the Make Whole obligations set forth in Section 5.6 above and in the
Management Agreement.
5.10 Hialeah Lease. On the Closing Date, Purchaser, as subtenant, shall
enter into a sublease agreement with Parent for the sublease of the property
located at 000 X.X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Premises") for a
one (1) year period commencing on the Closing Date at an annual rental of
$600,000, payable in equal monthly installments. In connection with said
sublease, in the event Parent shall have an option to purchase said Premises,
Parent agrees to grant to Purchaser a "back to back" option to purchase said
Premises upon the same terms and conditions contained in Parent's Option, and,
in the event Parent shall have such Option, Purchaser may require Parent to
exercise said Option simultaneously with Purchasers exercise of its Option
ARTICLE VI
CONDITIONS TO THE OBLIGATION 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 (at the Closing)
of Purchaser and the Asset Owners contained in this Agreement shall be true and
correct at and as of the Closing with the same force and effect as though trade
at and as of that time. Parent shall have performed and complied with all of his
obligations required by this Agreement to be performed or complied with at or
prior to the Closing. Parent and Asset Owners shall have delivered to the
Purchaser a
16
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 Assets. At the Closing, the Asset Owners shall duly
endorse for transfer and deliver to the Purchaser (or its assignee) the Assets
and such other Conveyancing Documents as are necessary to transfer to Purchaser
(or its assignee) good and marketable title to the Assets 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 Deportment 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.
6.4 Consummation of Transactions Under Stock Purchase Agreement. The
acquisition of the Arrow Stock and other transactions contemplated by the Stock
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) The Asset Owners and the Parent have obtained all
necessary authorizations and consents of its Board of Directors and
shareholders to effect the transactions contemplated hereby;
(ii) 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 Asset
Owners. Arrow, any of their subsidiaries as 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 Asset Owners 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 or the Commonwealth of Puerto Rico having jurisdiction
over the Parent, the Asset Owners, 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.
17
(iii) Such counsel does nor know or have reason to believe
that there is arty litigation, proceeding or investigation pending or
threatened which might result in any Material Adverse Effect on the
Parent, the Asset Owners or Arrow, or which questions the validity of this
Agreement;
(iv) Such counsel does not know or have reason to believe that
any event has occurred or state of facts exists which would constitute &
breach of any of the representations and warranties made by the Parent or
the Asset Owners pursuant to Article II of this Agreement; and
(v) This Agreement is a valid and binding obligation of the
Parent, Xxxxx and the Asset Owners and enforceable against each of them
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.
6.6 Execution and Delivery of Exhibits and Conveyancing Documents. On the
Closing Date, each of the Parent, Xxxxx and the Asset Owners, as applicable,
shall have executed and delivered to the Purchaser the Security Agreement the
Management Agreement and the Joinder and Assumption Agreement In addition, on
the Closing Date, each of the Asset Owners shall have executed and delivered to
the Purchaser or its permitted assignee & xxxx of sale and such other
Conveyancing Documents transferring title to the Assets, all in form and
substance satisfactory to the Purchaser and its counsel.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF PARENT AND XXXXX
The obligations of the Parent and Xxxxx 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 Tint
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.
18
7.2 Payment of Consideration.
(a) At the Closing, Purchaser shall have paid the Purchase Price for
the Assets under this Agreement and the purchase price for the Arrow Stock under
the Stock Purchase Agreement, to the Asset Owners and to the Stockholder, as
contemplated hereby and thereby.
(b) Notwithstanding the provisions of Section 7.2(a) or anything
else to the contrary contain in this Agreement or in the Stock Purchase
Agreement, in the event and to the extent that the Purchaser shall have funded
the bridge loan contemplated by the Loan Agreement prior to the Closing, the
Parent and Xxxxx hereby mutually covenant and agree that Purchaser shall receive
on the Closing Date, a dollar-for-dollar credit against the Purchase Price for
the Assets and the purchase price for the Arrow Stock under the Stock Purchase
Agreement to the extent of the principal amount of all loans and advances made
to the Parent under the Loan Agreement. which shall thereby be deemed satisfied
in final form.
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 Stock Purchase Agreement shall not
violate the HSR Act.
7.4 Opinion of counsel. The Parent and Xxxxx 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 Tide 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
19
or governmental agency or body of the United States or (he State of
Delaware having jurisdiction over the Purchaser, any of their subsidiaries
or any of is 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,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights generally or general equitable principals.
ARTICLE VIII
INDEMNIFICATION
8.1 By the Parent and the Asset Owners. The Parent hereby agrees that on
and after the Closing Date the Parent and the Asset Owners 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 Asset Owners in or pursuant to this Agreement, (b) arising
directly or indirectly out of or in any way connected with the ownership.
possession, operation or control of any of the Assets or of the business of
Arrow at any time up to or including the Closing Date) or (c) arising directly
or indirectly out of or in any way connected with the Excluded Assets or
Excluded Liabilities. The amount of any indemnification payment from the Parent
or the Asset Owners to the Purchaser, Arrow or any officer or director of the
Purchaser or Arrow shall be equal to the amount that, after the payment
20
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 Asset Owners from and against, and on
written demand to pay, or to reimburse the Parent or the Asset Owners for the
payment of, any and all Expenses imposed on, incurred by or asserted against
Parent or the Asset Owners after the Closing Date relating to any breach of a
representation or warranty made by the Purchaser in this Agreement, or arising
directly or indirectly out of or in any way connected with the ownership,
possession, operation or control of any of the Assets or of the business of
Arrow at any time following the Closing Date. The amount of any indemnification
payment from Purchaser to the Parent or the Asset Owners 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 Asset Owners.
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 Parry, 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 Parry and, after notice from the Indemnifying Parry 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
21
is given to the Indemnifying Party of the commencement of any action and the
Indemnifying Parry 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).
(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 of the Parent and
Xxxxx made in this Agreement shall survive for a period of five (5) years from
and after the Closing Date; provided, that the Parent's representations and
warranties contained in Section 2.13(ERISA), Section 214 (Taxes) and Section
2.15 (Environmental Matters) shall survive for the duration of the applicable
statute(s) of limitations relative to such matters.
(b) The indemnification obligations of each of the Parent and the
Asset Owners, on the one hand, and the Purchaser, on the other hand, in respect
of Excluded Liabilities (which shall be the sole responsibility of the Parent
and the Asset Owners) and the Assumed Liabilities (which shall be the sole
responsibility of the Purchase) shall survive the Closing Date indefinitely.
(c) The Security Agreement providing the Purchaser with collateral
to secure the indemnification obligations of the Parent and the Asset Owners set
forth in this Agreement shall terminate and Purchase's Lien on the Additional
Assets described therein shall terminate on a date which shall be the later to
expire of (i) the payment and performance of all "Make Whole" obligations of the
parent and the Asset Owners pursuant to Section 5.6 of this Agreement, or (ii)
March 30,2000.
ARTICLE IX
DEFINITIONS
"Affiliate" shall mean, with respect to any Person, any other Person who
shall directly or indirectly control, be controlled by or be under common
control with such Person.
22
"Code" means the Internal Revenue Code of 1986, as needed, and treasury
regulations promulgated thereunder.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"Loan Agreement" means the loan agreement, dated February 5, 1999, between
the Parent, Xxxxx and the Purchaser, pursuant to which the Purchaser has agreed,
as an advance and deposit against the purchase prices set forth in this
Agreement and in the Stock Purchase Agreement, to extend a short-term bridge
loan to the Parent, all pursuant to the terms and subject to the conditions set
forth in such Loan Agreement and the Exhibits thereto
"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
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 March 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 within five (5) business days after the 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 riot violate the HSR Act; provided, chat,
absent mutual agreement of the Parent and the Purchaser to extend such date, the
Closing Date shall not occur later than April 1, 1999.
23
10.2 Effect of Termination. In the event of termination of this Agreement
pursuant to Section 10.1, 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 Xxxxx, 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 Xxxxx and any Subsidiary of the
Parent to consummate all of the transactions contemplated by this Agreement and
by the Stock 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 Xxxxx 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
24
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: 305-8714232
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.
25
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 art 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 affiliate, successor or subsidiary controlled by, controlling
or under common control with Purchaser; provided, that such permitted
assignments shall not relieve Purchase of its obligations hereunder. 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
26
contracts executed and to be wholly performed within such Stare. 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 (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 Dilly 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; (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 panics 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.
27
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
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
FINE AIR SERVICES CORP.
By: /s/ X. Xxxxx Fine
---------------------------------
X. Xxxxx Fine, Chairman
28
FIRST AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE OF ASSETS
FIRST AMENDMENT, dated as of March 10th, 1999 (the "Amendment"), to the
Agreement of Purchase and Sale of Assets dated February 5, 1999 by and among
Fine Air Services, Corp., a Delaware corporation, ("Fine Air") International Air
Leases of PR, Inc., a Puerto Rico corporation ("IALPR"), and Xxxxxxx X. Xxxxx
("Xxxxx") (the "Asset Purchase Agreement").
W I T N E S S E T H:
WHEREAS, the parties hereto are all of the parties to the Asset Purchase
Agreement;
WHEREAS, pursuant to the Asset Purchase Agreement, Fine Air intends to
purchase certain assets of IALPR and its subsidiaries and affiliates; and
WHEREAS, Pursuant to Section 11.4 of the Asset Purchase Agreement, the
parties hereto wish to amend certain provisions of that agreement.
NOW, THEREFORE, the parties hereto hereby agree that the Asset Purchase
Agreement be amended as follows:
1. Definitions; References; Continuation of Agreement. Unless otherwise
specified herein, each capitalized term used herein that is defined in the Asset
Purchase Agreement shall have the meaning assigned to such term in the Asset
Purchase Agreement. Each reference herein to a "Section" refers to that numbered
Section of the Asset Purchase Agreement. Each reference to "hereof,"
"hereunder," "herein," and "hereby" and each other similar reference, contained
in this Amendment shall from and after the date hereof refer to the Asset
Purchase Agreement as amended hereby. Except as amended hereby, all terms and
provisions of the Asset Purchase Agreement shall continue and remain in full
force and effect.
2. Section 1.3 is hereby amended by the addition of the following
subsection:
(d) The Purchase Price shall be deemed paid, dollar for dollar, by
the dollar amount of indebtedness that is cancelled by Fine Air under that
certain $115.0 million Loan Agreement by and among Fine Air, as Lender,
IALPR, as Borrower and Xxxxx, as evidenced by that certain $115 million
Promissory Note dated February 10, 1999 and executed by IALPR, as debtor,
which amount of cancellation of indebtedness is equal to $100 Million. In
connection with such cancellation, IALPR as Borrower and Xxxxx agree to
execute a new Promissory Note which shall evidence the remaining balance
payable under that certain loan agreement referenced herein.
3. Section 1.1(a)(iii) is hereby deleted and the following substituted in
its place:
"(iii) ninety-nine (99) serviceable and repairable Xxxxx &
Whitney JT3D engines (as set forth on Exhibit B) together with
the contents of a "Stockroom" of new, serviceable and overhauled
engine parts located at 000 XX 00xx Xxxxxx, Xxxxxxx, Xxxxxxx, and"
4. The chart in Section 5.6 is hereby deleted and the following
substituted in its place:
Asset Item
No. in Agreed Upon
Exhibit A Quantity Asset Description Value
----------- ---------- ----------- ------------------------ --------------
No. 15 and Two (2) DC8-62 N42086 and N66656 $8,000,000
16 Aircraft
No. 19 Ninety Aircraft JT3D engines and the
Nine (99) engines contents of the "engine
parts" stockroom of new,
overhauled and
serviceable engine parts
located at 000 XX 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx $35,000,000
-----------
Subtotal $43,000,000
No. 36 One (1) Engine Shop IAL engine shop and
residual engines and
spare parts not listed
above $10,000,000
No. 37 One (1) Wheel and W&B Shop and Inventories $5,000,000
brake Shop
No. 39 Inventories AAA Interair and IAL new
and used inventories of
aircraft and engine
parts not listed above,
wherever located,
including the inventory
located at 000 XX 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx $25,000,000
-----------
Subtotal $40,000,000
Total $83,000,000
===========
5. The reference to Asset Item No. 10 in the second sentence of the second
paragraph of Section 5.6(c) is hereby deleted and the following substituted in
its place: "Asset Item No. 19."
6. The reference to "items Numbers 7" in the 3rd sentence of the second
paragraph of Section 5.6(c) is hereby deleted and the following substituted in
its place: "Items numbered 15 and 16" and the reference to "10" in that sentence
is hereby deleted and the Number "19" substituted in its place.
7. The reference to "Aircraft Engines" in the "Asset Column" of the chart
in section 5.6 of the Agreement is hereby deleted and the following substituted
in its place: '99 JT3D
2
Aircraft Engines". Additionally, the description of said assets contained in the
"Description" column of said chart ("JT3D and new parts") is hereby deleted and
the following substituted in its place "the contents of the 'stockroom' of new,
overhauled and serviceable engine parts located at 000 XX 00xx Xxxxxx, Xxxxxxx,
Xxxxxxx."
8. Exhibits "B" "B-2" and "B-3" and Schedule 1.5 of the Agreement are
hereby deleted and Xxxxxxxx "X", "X-0" and "B-3" and Schedule 1.5 attached
hereto as exhibits are hereby respectively substituted in their places.
9. The description of Item 19 of Exhibit "A" to the Agreement is hereby
deleted and the following substituted in its place:
"Ninety-nine (99) serviceable and repairable JT3D engines (see
Exhibit B) together with the contents of the stockroom of new,
overhauled and serviceable engine parts located at 000 XX 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx"
10. The description of item 39 on Exhibit "A" to the Agreement is hereby
deleted and the following substituted in its place:
"AAA Interair and IAL new & used inventories of aircraft and
engine parts, wherever located, including, but not limited to the
"stock room" of inventory located at 000 XX 00xx Xxxxxx, Xxxxxxx,
Xxxxxxx and rotables at outside vendors and rotables on exchange to
customers."
11. Counterparts. This Amendment may be executed in counterparts and may
not be amended or waived except in the manner provided in the Asset Purchase
Agreement. This Amendment may be executed by facsimile.
12. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Florida.
[Signatures are on the following page.]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
FINE AIR SERVICES CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior V.P.
INTERNATIONAL AIR LEASES OF PR, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Xxxxxxx X. Xxxxx
4
