EXHIBIT 10.5
AMENDMENT NO. 3 TO AIRCRAFT LEASE
This Amendment No. 3 dated as of August 25, 2004 to Aircraft Lease
(N166DT) dated as of March 3, 1999 ("Amendment") is executed by and between
Fleet National Bank ("Lessor") with a place of business at c/o Fleet Capital
Corporation, Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000, and Priority Fulfillment
Services, Inc., a Delaware corporation ("Lessee") having its principal place of
business and chief executive office at 000 Xxxxx Xxxxxxx Xxxxxxxxxx, 0xx Xxxxx,
Xxxxx, Xxxxx 00000.
W I T N E S S E T H
WHEREAS, Lessor and Daisytek, Incorporated entered into a certain Aircraft
Lease (N166DT) dated as of March 3, 1999 and related Lease Supplement No. 1
dated March 3, 1999 and Lease Supplement No. 2 dated March 3, 1999, all of which
documents were recorded as one document by the Federal Aviation Administration
("FAA") on March 6, 1999 as Conveyance No. X139002 (said Aircraft Lease, Lease
Supplement No. 1 and Lease Supplement No. 2 sometimes hereinafter collectively
referred to as the "Aircraft Lease") regarding a certain 1999 Learjet Inc. Model
31A aircraft, bearing manufacturer's Serial No. 166 and U.S. Registration Xxxx
N166DT (hereinafter referred to as the "Original Aircraft"), two (2)
AlliedSignal Model TFE731-2-3B engines respectively bearing manufacturer's
Serial Nos. 99456 and 99459, each of which engines has 750 or more rated takeoff
horsepower or the equivalent of such horsepower (collectively, the "Original
Engines") and certain other equipment leased under the Aircraft Lease, all as
more particularly described in the Aircraft Lease (said Original Aircraft,
Original Engines and all other equipment sometimes hereinafter collectively
referred to as the "Original Leased Equipment"); and
WHEREAS, the Lessor and Daisytek, Incorporated amended the Aircraft Lease
pursuant to a certain Amendment No. 1 dated as of September 15, 1999 to Aircraft
Lease and Lease Supplement No. 1 ("Amendment No. 1"), which Amendment was
recorded by the FAA on October 12, 1999 as Conveyance No. PP012904, and which
Amendment provided for the replacement of the Original Aircraft with a certain
Learjet Inc. Model 31A aircraft, bearing manufacturer's Serial No. 183 and U.S.
Registration Xxxx N183ML (hereinafter referred to as the "Learjet Aircraft"),
two (2) AlliedSignal Model TFE731-2-3B engines respectively bearing
manufacturer's Serial Nos. 99492 and 99491, each of which engines has 750 or
more rated takeoff horsepower or the equivalent of such horsepower
(collectively, the "Engines") and certain other equipment leased under the
Aircraft Lease, all as more particularly described in the Aircraft Lease, as
amended by Amendment No. 1 (said Learjet Aircraft and Engines sometimes
hereinafter collectively referred to as the "Aircraft"); and
WHEREAS, pursuant to the terms of Amendment No. 1, the Original Aircraft
and the other Original Lease Equipment were replaced with the Aircraft for all
purposes under the Aircraft Lease, as amended by Amendment No. 1; and
WHEREAS, pursuant to a certain Aircraft Lease Assignment, Assumption and
Amendment Agreement dated as of July 3, 2000 ("Assignment Agreement") between
Daisytek, Incorporated, the Lessee and the Lessor, which Assignment Agreement
was recorded by the FAA on August 17, 2000 as Conveyance No. HKO18697, (i)
Daisytek, Incorporated assigned to the Lessee all of Daisytek, Incorporated's
right, title and interest in and to the Aircraft Lease, as amended by Amendment
No. 1, and the Aircraft, (ii) the Lessee assumed all of Daisytek, Incorporated's
right, title and interest in and to the Aircraft Lease, as amended by Amendment
No. 1, and the Aircraft and all of Daisytek, Incorporated's obligations
thereunder, (iii) the Aircraft Lease, as amended by Amendment No. 1, was further
amended, and (iv) the Lessor consented to the assignment and assumption of the
Aircraft Lease, as amended by Amendment No. 1, and the Aircraft, and the further
amendment of the Aircraft Lease, as evidenced by the Assignment Agreement; and
WHEREAS, the Lessor and the Lessee further entered into a certain
Amendment dated as of May 10, 2001 to Aircraft Lease (N166DT) dated as of March
3, 1999 ("2001 Amendment"), which 2001 Amendment was not recorded by the FAA;
(the 2001 Amendment together with the Assignment Agreement, Amendment No. 1 and
the Aircraft Lease sometimes hereinafter collectively referred to as the
"Lease"); and
WHEREAS, the Lessee has requested that the Lessor allow the Lessee to
terminate the Lease and to purchase the Aircraft from the Lessor prior to the
end of the term of said Lease notwithstanding the fact that the Lessee is not
entitled, or does not have the right, to do so at this time; and
WHEREAS, the Lessor has agreed to the foregoing requests but only on the
terms and conditions contained in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Capitalized terms used in this Amendment and not otherwise defined
herein shall have the respective meanings given to such terms in the Lease and
in any other schedules, supplements, instruments, amendments, modifications,
documents, instruments or agreements executed and/or delivered in connection
with the Lease (all of the foregoing, other than the Lease, sometimes
hereinafter collectively referred to as the "Other Lease Documents").
2. Effective as of August 26, 2004 (or such earlier or later date as is
acceptable to Lessor in its sole discretion) (hereinafter the "Termination
Date") and expressly subject to satisfaction of the conditions precedent set
forth in this Amendment, the Lease and the Other Lease Documents shall terminate
on the date the Lessor has irrevocably received (i) all of the applicable
amounts provided in Section 4 of this Amendment, and (ii) the duly executed
Delivery Receipt (as such term is defined in Section 5 of this Amendment), as
well as all of the duly executed documents, agreements and instruments required
by the Lessor pursuant to Section 4 (or any other applicable section) of this
Amendment. Lessee hereby further acknowledges and agrees that, from and after
the date hereof, all purchase options, early purchase options, early termination
option, upgrade options and options to renew pursuant to the Lease and the Other
Lease Documents and any rights or options to assign the Lease and the Other
Lease Documents or to sublease the Aircraft shall be hereby deemed automatically
canceled, terminated and/or declined, as the case may be; provided, however,
that any such purchase options, early purchase options, early termination
option, upgrade options and options to renew shall be automatically reinstated
pursuant to the terms of Section 16 of this Amendment in the event that, on or
prior to the Termination Date, any of Bombardier Aerospace Corporation
("Bombardier"), Lessee and/or PFSWeb, Inc. (the "Guarantor"), as the case may
be, fail to fully and timely comply with any of the terms and provisions of
Section 4 and/or subclauses (i) through (viii) of Section 16 of this Amendment.
3. The Lessee's obligations and duties under the Lease and the Other Lease
Documents, including, without limitation, the obligation to pay Basic Rent,
shall continue unabated until the Lessee has fully and timely complied with all
of the terms and conditions of this Amendment and the Lessor has irrevocably
received (i) all of the applicable amounts provided in Section 4 of this
Amendment, and (ii) the duly executed Delivery Receipt, as well as all of the
duly executed documents, agreements and instruments required by the Lessor
pursuant to Section 4 (or any other applicable section) of this Amendment.
Notwithstanding the foregoing or otherwise, the Lessee hereby further
acknowledges and agrees that all of its indemnification obligations and
agreements, and waivers, in favor of the Lessor (and/or any related parties or
entities as provided in the Lease and the Other Lease Documents) shall remain in
full force and effect in accordance with the original terms and conditions of
the Lease and/or the Other Lease Documents. In addition, the Lessee hereby
further agrees to indemnify, protect, save, defend and keep harmless the Lessor
and its agents, employees, officers, directors, shareholders, subsidiaries,
affiliates, successors and assigns (Lessor and such other parties sometimes
hereinafter collectively referred to as the "Indemnified Parties"), on a net
after-tax basis, from and against any and all liabilities, obligations, losses,
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damages, penalties, claims (including, without limitation, claims involving or
alleging product liability or strict or absolute liability in tort), actions,
suits, demands, costs, expenses and disbursements (including, without
limitation, legal fees and expenses) of any kind and nature whatsoever which may
be imposed on, incurred by, or asserted against, any of the Indemnified Parties,
whether or not any of the Indemnified Parties shall also be indemnified as to
any such matters by any other Person, in any way relating to or arising out of
the Aircraft, the sale of the Aircraft by Lessor to Lessee pursuant to this
Amendment (including, without limitation, any sales or other taxes, or any
broker's fees, expenses or commissions, due, payable, owing or outstanding in
connection with said sale, other than any taxes on or measured solely by the net
income of Lessor), this Amendment, the Lease, the Other Lease Documents or any
documents, agreements or instruments related to any of the foregoing
notwithstanding anything to the contrary contained in this Amendment, the Lease,
the Other Lease Documents or otherwise, including, without limitation, (i) the
Lessee's and the Lessor's respective execution and delivery of this Amendment,
the FAA Lease Termination (as such term is defined in Section 4 of this
Amendment) and/or the 2004 Aircraft Lease (as such term is defined in Section 4
of this Amendment), (ii) the Lessee's execution and delivery of the Delivery
Receipt, the Swap Agreement (as such term is defined in the 4 of this
Amendment), the 2004 Additional Aircraft Lease Documents (as such term is
defined in Section 4 of this Amendment) and any documents, agreements or
instruments related to the 2004 Aircraft Lease, the Swap Agreement and/or the
2004 Additional Aircraft Lease Documents, (iii) the Guarantor's execution and
delivery of the 2004 Guaranty (as such term is defined in Section 4 of this
Amendment), the Guarantor Consent (as such term is defined in Section 4 of this
Amendment), the 2004 Additional Guaranty Documents (as such term is defined in
Section 4 of this Amendment), the Additional Guarantor Consent Documents (as
such term is defined in Section 4 of this Amendment) and any documents,
agreements or instruments related to the 2004 Guaranty, the Guarantor Consent,
the 2004 Additional Guaranty Documents and/or the Additional Guarantor Consent
Documents, and/or (iv) the Lessor's execution and/or delivery, as the case may
be, of the Xxxx of Sale (as such term is defined in Section 4 of this
Amendment), the FAA Xxxx of Sale (as such term is defined in Section 4 of this
Amendment), the UCC Termination Statements (as such term is defined in Section 4
of this Amendment) and/or any documents, agreements or instruments related
thereto. Moreover, and notwithstanding anything to the contrary contained in
this Amendment or otherwise, each of the Lessee and the Lessor hereby further
acknowledges and agrees that the termination contained in this Amendment shall
not terminate, or otherwise adversely affect, prejudice or limit, in any way
whatsoever any other documents, agreements or instruments of any kind whatsoever
executed and/or delivered by the Lessee or any other party, person or entity of
any kind whatsoever in favor of the Lessor (including, without limitation, the
2004 Aircraft Lease, the 2004 Additional Aircraft Lease Documents, the 2004
Guaranty, the 2004 Additional Guaranty Documents, the Guarantor Consent and the
Additional Guarantor Consent Documents) or any obligations, liabilities, or
agreements of the Lessee or any other party, person or entity of any kind
whatsoever in favor of the Lessor pursuant to any such other documents,
agreements, instruments or otherwise (including, without limitation, the 2004
Aircraft Lease, the 2004 Additional Aircraft Lease Documents, the 2004 Guaranty,
the 2004 Additional Guaranty Documents, the Guarantor Consent and the Additional
Guarantor Consent Documents). The indemnification agreements, obligations and
liabilities of the Lessee set forth in the Lease, this Section 3 and any other
applicable section of this Amendment shall survive the execution and delivery of
this Amendment, the Delivery Receipt, the Xxxx of Sale, the FAA Xxxx of Sale,
the FAA Lease Termination, the UCC Termination Statements, the Swap Agreement,
the 2004 Aircraft Lease, the 2004 Additional Aircraft Lease Documents, the 2004
Guaranty, the 2004 Additional Guaranty Documents, the Guarantor Consent, the
Additional Guarantor Consent Documents and/or any other documents, agreements or
instruments related to any of the foregoing, and shall also survive the
termination of the Lease and the Other Lease Documents, for all purposes.
4. On the Termination Date (and/or on any later date acceptable to the
Lessor in its sole discretion), the Lessee shall (i) cause Bombardier to timely
and fully sell, convey and transfer a certain Learjet Inc. Model 31A aircraft
bearing U.S. Registration Xxxx N122BX and manufacturer's serial number 143 (the
"2004 Aircraft") to Lessor strictly in accordance with the terms of a certain
swap or trade-in agreement dated August 10, 2004 (the "Swap Agreement") between
Lessee and Bombardier with regard to the Aircraft and the 2004 Aircraft Lease,
(ii) cause Bombardier to pay Lessor, in immediately available funds via wire
transfer, $820,566.00 with regard to the Swap Agreement, (iii) execute and
deliver to Lessor a certain Lease (S/N 143) dated as of August 25, 2004 (the
"2004 Aircraft Lease") between the Lessor and the Lessee and any and all
documents, agreements or instruments required or requested by
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Lessor in connection therewith (any such other documents, agreements or
instruments required or requested by Lessor sometimes hereinafter collectively
referred to as the "2004 Additional Aircraft Lease Documents"), which 2004
Aircraft Lease and 2004 Additional Aircraft Lease Documents shall be in form and
substance satisfactory in all respects to Lessor, (iv) accept the 2004 Aircraft
for lease under or in connection with the 2004 Aircraft Lease and execute and
deliver to Lessor a certain Lease Supplement to such 2004 Aircraft Lease, which
Lease Supplement shall be in form and substance satisfactory in all respects to
Lessor, (v) fully and timely comply with any and all terms and provisions of the
2004 Aircraft Lease, (vi) cause the Guarantor to execute and deliver to Lessor a
certain Guaranty dated as of August 25, 2004 (the "2004 Guaranty") in favor of
the Lessor and any and all documents, agreements or instruments required or
requested by Lessor in connection therewith (any such other documents,
agreements or instruments required or requested by Lessor sometimes hereinafter
collectively referred to as the "2004 Additional Guaranty Documents"), which
2004 Guaranty and 2004 Additional Guaranty Documents shall be in form and
substance satisfactory in all respects to Lessor, (vii) cause the Guarantor to
execute and deliver to Lessor a certain Guarantor's Acknowledgment, Agreement
and Consent dated as of August 25, 2004 (the "Guarantor Consent") in favor of
the Lessor and any and all documents, agreements or instruments required or
requested by Lessor in connection therewith (any such other documents,
agreements or instruments required or requested by Lessor sometimes hereinafter
collectively referred to as the "Additional Guarantor Consent Documents"), which
Guarantor Consent and Additional Guarantor Consent Documents shall be in form
and substance satisfactory in all respects to Lessor, (viii) pay to Lessor, in
immediately available funds via wire transfer, the August 5, 2004 Basic Rent
payment (which August 5, 2004 Basic Rent payment has been received by Lessor)
together with all other Rent and any other amounts then due and payable under
the Lease and the Other Lease Documents on, as of, or prior to, the Termination
Date (excluding any Supplemental Rent which may be due or payable prior to, on,
or after the Termination Date, which Supplemental Rent, however, shall continue
to be due and payable by the Lessee), and (ix) pay to Lessor, in immediately
available funds via wire transfer, any applicable sales, excise or other taxes
imposed as a result of the sale of the Aircraft to the Lessee (other than gross
or net income taxes attributable to such sale) (all of said amounts set forth in
subclauses (ii), (viii) and (ix) hereinafter collectively referred to as the
"Outstanding Termination Amounts"); provided, however, that the Lessee shall
continue to be liable, obligated and responsible for any Supplemental Rent which
may be due or payable prior to, on, or after the Termination Date and for any
other amounts or payments due, payable or outstanding relating to the Lease, any
Other Lease Documents and/or this Amendment after the Termination Date
(including, without limitation, any amounts or payments relating to any
indemnification or tax agreements, obligations or liabilities, including, but
not limited to, any indemnification agreements, obligations or liabilities set
forth in Section 3 of this Amendment), other than for any Basic Rent due after
the Termination Date.
Upon the Lessor's receipt of the Outstanding Termination Amounts and this
Amendment duly executed by the Lessee and any other documents required by this
Amendment (including, without limitation, the Delivery Receipt, the FAA Lease
Termination, the 2004 Aircraft Lease, 2004 Additional Aircraft Lease Documents,
the 2004 Guaranty, the 2004 Additional Guaranty Documents, the Guarantor Consent
and the Additional Guarantor Consent Documents), the Lessor hereby further
agrees (i) to sell the Aircraft to the Lessee on an "AS-IS WHERE-IS" AND "WITH
ALL FAULTS" BASIS, WITHOUT ANY REPRESENTATION BY, OR RECOURSE OR WARRANTY,
EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER TO, LESSOR, (ii) to deliver the
Aircraft, at the Lessee's sole cost and expense, to the Lessee at any airport
located in the State of Kansas (or at any other location acceptable to Lessor
and Lessee), (iii) to execute and deliver to the Lessee an "As-Is Where-Is" Xxxx
of Sale ("Xxxx of Sale") which Xxxx of Sale shall be in the form attached hereto
and made a part hereof as Exhibit 1, (iv) to execute and deliver to the Lessee
an FAA Xxxx of Sale ("FAA Xxxx of Sale") which FAA Xxxx of Sale shall be in the
form attached hereto and made a part hereof as Exhibit 2, (v) to execute and
deliver to the Lessee an FAA Lease Termination Agreement ("FAA Lease
Termination") which FAA Lease Termination shall be in the form attached hereto
and made a part hereof as Exhibit 3, and (vi) to deliver to the Lessee Uniform
Commercial Code ("UCC") Termination Statements (collectively, the "UCC
Termination Statements") which shall terminate any existing UCC Financing
Statements concerning only the Aircraft (or, in the event that any existing UCC
Financial Statements concerning the Aircraft also concern additional aircraft or
other collateral, UCC Partial Releases as to the Aircraft only).
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5. Concurrently with the delivery of the Aircraft to the Lessee, the
Lessee shall execute and deliver to the Lessor a delivery receipt ("Delivery
Receipt") which Delivery Receipt shall be in the form attached hereto and made a
part hereof as Exhibit 4 and the FAA Lease Termination. The Lessee's acceptance
of the Aircraft by executing the Delivery Receipt shall be deemed conclusive
evidence that (i) the Lessee has inspected the Aircraft, and any logbooks and
all other records relating thereto, to the Lessee's complete satisfaction, (ii)
the Aircraft is in good order, repair and condition, (iii) the Aircraft complies
with the terms of this Amendment, and (iv) the Lessee has irrevocably and
unconditionally accepted delivery of the Aircraft for all purposes.
6. On the Termination Date (or on any other date requested by the Lessor),
and in order to further induce the Lessor to enter into this Amendment, the
Lessee hereby further agrees to pay all actual costs and expenses incurred by,
or on behalf of, the Lessor in connection with any of this Amendment, the
termination of the Lease and purchase of the Aircraft contemplated hereunder,
including, but not limited to, the fees and expenses of any escrow agent and/or
of the Lessor's counsel and FAA counsel; provided, however, that the foregoing
costs and expenses payable by the Lessee shall not, in the aggregate, exceed
$30,000.00; provided, further, however, that the foregoing $30,000.00
limitation, and the Lessee's payment of any costs and expenses, pursuant to this
Section 6 shall not limit, or waive, or be applicable to, in any way whatsoever
any other costs and/or expenses or other legal fees or costs and expenses
incurred by or on behalf of the Lessor in connection with (x) the exercise or
enforcement of any of the rights or remedies of the Lessor in connection with
the Lease, the Other Lease Documents, this Amendment and/or any and all other
documents, agreements and/or instruments executed and/or delivered in connection
therewith or herewith, as the case may be, or at law or in equity or otherwise
after the date hereof, (y) any indemnification agreements, obligations and
liabilities of the Lessee set forth in the Lease, Section 3 of this Amendment
and any other applicable section of this Amendment, and/or (z) the failure by
the Lessee to perform or observe any term or condition contained in any of the
Lease, the Other Lease Documents, this Amendment and/or any and all other
documents, agreements and/or instruments executed and/or delivered in connection
therewith or herewith, as the case may be.
7. The Lessee hereby further acknowledges and agrees that it shall have no
claim, right, title or interest of any kind whatsoever to any amounts or any
sales, use or similar tax paid to or by the Lessor or otherwise in connection
with the acquisition, the leasing, or any sale of the Aircraft, except for any
claim, right, title or interest of the Lessee with regard to any sale of the
Aircraft by the Lessee after the Lessee purchases the Aircraft from the Lessor
pursuant to the terms of this Amendment.
8. Each of the Lessee and the Lessor hereby further (i) affirms and
ratifies their respective obligations under or in connection with the Lease and
any Other Lease Documents, and (ii) agrees that the Lease and the Other Lease
Documents are in full force and effect without variance, qualification,
discharge or diminution of any kind whatsoever (except as otherwise expressly
provided in this Amendment).
9. Each of the parties represents and warrants to the other party that (i)
such party's execution and delivery of this Amendment and any other documents,
agreements and instruments executed or delivered in connection herewith have
been duly authorized on its part; (ii) such party has full power and authority
to execute, deliver and perform its obligations under this Amendment and any
other documents, agreements and instruments executed or delivered in connection
herewith; and (iii) all required consents for such party's execution, delivery
and performance of this Amendment and any other documents, agreements and
instruments executed or delivered in connection herewith have been duly
obtained.
10. This Amendment shall be binding upon the Lessee and its
representatives, successors, transferees and assigns and the benefits hereof
shall extend to and include the Lessor and its successors, representatives,
transferees and assigns.
11. This Amendment may be executed by one or more of the parties to this
Amendment on any number of separate counterparts and all said counterparts taken
together shall be deemed and constitute one and the same instrument.
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12. Unless the context otherwise requires, singular nouns and pronouns,
when used herein, shall be deemed to include the plural and vice versa, and
impersonal pronouns shall be deemed to include the personal pronoun of the
appropriate gender.
13. If any provision in this Amendment or any part thereof is held invalid
or unenforceable, such invalidity or unenforceability shall not affect or impair
the validity or the enforceability of the remaining provisions, or any part
thereof, of this Amendment.
14. This Amendment shall be deemed to have been executed in Rhode Island
by virtue of the Lessor having countersigned and accepted this Amendment in
Rhode Island and shall be deemed to be performed in Rhode Island by virtue of
the payment of the Outstanding Termination Amounts to be made to Lessor in Rhode
Island, and this Amendment shall be delivered for closing purposes in Lessor's
office at One Financial Plaza, Providence, Rhode Island. Notwithstanding the
foregoing, however, this Amendment shall in all respects be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law or choice of law, including all matters
of construction, validity and performance. The Lessee hereby irrevocably
consents and agrees that any legal action, suit or proceeding arising out of or
in any way in connection with this Amendment, the Lease and/or the Other Lease
Documents may be instituted or brought in the courts of the State of New York or
the United States District Court for the Southern District of New York, as the
Lessor may elect, and by execution and delivery of this Amendment, the Lessee
hereby irrevocably accepts and submits to, for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of any
such court, and to all proceedings in such courts.
15. THIS AMENDMENT SHALL NOT BE MODIFIED, ALTERED, AMENDED OR WAIVED IN
WHOLE OR IN PART EXCEPT IN WRITING DULY SIGNED BY EACH PARTY. ANY WAIVER SHALL
BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE FOR
WHICH IT IS GIVEN. NO FAILURE TO EXERCISE, OR DELAY IN EXERCISING, ANY RIGHT
HEREUNDER SHALL OPERATE AS A WAIVER THEREOF; NOR SHALL ANY FAILURE TO EXERCISE,
OR PARTIAL EXERCISE OF, ANY RIGHT HEREUNDER PRECLUDE ANY OTHER OR FURTHER
EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT.
16. Notwithstanding anything to the contrary contained in this Amendment
or otherwise, the Lessee shall not be entitled to terminate the Lease and the
Other Lease Documents pursuant to the terms of this Amendment in the event that,
on or prior to the Termination Date, (i) Bombardier does not, for any reason
whatsoever, timely and fully sell, convey and transfer the 2004 Aircraft to
Lessor strictly in accordance with the terms of the Swap Agreement, (ii)
Bombardier does not, for any reason whatsoever, pay Lessor, in immediately
available funds via wire transfer, $820,566.00 with regard to the Swap
Agreement, (iii) Lessee does not, for any reason whatsoever, execute and deliver
to Lessor the 2004 Aircraft Lease and the 2004 Additional Aircraft Lease
Documents, (iv) the Lessee does not, for any reason whatsoever, (x) accept the
2004 Aircraft for lease under or in connection with the 2004 Aircraft Lease and
execute and deliver to Lessor a certain Lease Supplement to such 2004 Aircraft
Lease, which Lease Supplement shall be in form and substance satisfactory in all
respects to Lessor, and/or (y) fully and timely comply with any and all terms
and provisions of the 2004 Aircraft Lease, (v) the Guarantor does not, in any
way whatsoever, execute and deliver to Lessor the 2004 Guaranty and the 2004
Additional Guaranty Documents, (vi) the Guarantor does not, in any way
whatsoever, execute and deliver to Lessor the Guarantor Consent and the
Additional Guarantor Consent Documents, (vii) the Lessee does not timely and
fully pay the Lessor the Outstanding Termination Amounts pursuant to the terms
of Section 4 of this Amendment, and/or (viii) Lessee does not fully and timely
comply with all of the terms and conditions of this Amendment. Upon the
occurrence of any such failure by any of Bombardier, the Lessee and/or the
Guarantor, as the case may be, to fully and timely comply with any of the terms
and provisions of subclauses (i) through (viii) above, the Lease and the Other
Lease Documents shall not be terminated and such documents shall remain, and
continue to be, in full force and effect and the Lessee shall be obligated to
continue to timely and fully comply with all the terms and conditions of said
Lease and Other Lease
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Documents, including, without limitation, timely and fully paying all Basic Rent
and other amounts due or payable in connection with the Lease and/or the Other
Lease Documents.
17. Except as expressly modified or amended in this Amendment, the terms
and conditions of the Lease and the Other Lease Documents shall remain in full
force and effect in accordance with their respective original tenor. Without
limiting the generality of the foregoing or any other terms of this Amendment,
nothing contained herein shall be interpreted or construed in any way whatsoever
to limit the various provisions of the Lease and/or the Other Lease Documents
except as otherwise expressly provided herein.
18. The terms and provisions of this Amendment shall be effective as of
the date hereof, except as otherwise provided in the first sentence of Section 2
of this Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment by their
respective duly authorized representatives as of the date and year first above
written.
FLEET NATIONAL BANK
By:_________________________________
Name:_______________________________
Title:____________________________
PRIORITY FULFILLMENT SERVICES, INC.
By:_________________________________
Name:_______________________________
Title:____________________________
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EXHIBIT 1
XXXX OF SALE
Fleet National Bank (the "Seller"), in consideration of the sum of Ten and
00/100 U. S. Dollars ($10.00) and other good and valuable consideration paid by
Priority Fulfillment Services, Inc. (the "Buyer"), receipt of which is
acknowledged, hereby grants, sells, assigns and transfers to Buyer the aircraft
and the engines specifically described in the immediately succeeding paragraph
together with all appliances, parts, instruments, appurtenances, accessories,
furnishings, avionics, components and other equipment of whatever nature
installed on said aircraft (other than, however, any loaner engines or any other
loaner appliances, parts, instruments, appurtenances, accessories, furnishings,
avionics, components and equipment of whatever nature) and all logbooks,
manuals, certificates, data and inspection, modification, maintenance,
engineering, technical, overhaul and all other books and records (including all
computerized data, records and materials) as pertain to the operation and
maintenance of such aircraft and which are in Seller's possession (all of the
foregoing hereinafter collectively referred to as the "Aircraft"), along with
whatever claims and rights Seller may have against the manufacturer and/or
supplier of the Aircraft, including, but not limited to, all warranties and
representations, but only to the extent that any of such claims or rights or
representations or warranties (i) are existing or in effect as of the date of
this Xxxx of Sale and (ii) are permitted to be assigned by Seller to Buyer
pursuant to the terms of any warranty or maintenance agreements or contracts
relating solely to the Aircraft; provided, however, that the Seller is not
selling, assigning or otherwise transferring in any way whatsoever any existing
maintenance or repair programs in the name of Seller concerning or relating in
any way to the Aircraft (or any portion thereof) and any such maintenance or
repair programs are hereby excluded from the term "Aircraft" and are also
excluded from this Xxxx of Sale for all purposes.
DESCRIPTION OF AIRCRAFT
One used Learjet Inc. Model 31A aircraft bearing manufacturer's Serial No.
183 and U.S. Registration Xxxx N183ML and two (2) AlliedSignal Model TFE731-2-3B
engines respectively bearing manufacturer's Serial Nos. 99492 and 99491.
BUYER IS PURCHASING THE AIRCRAFT IN RELIANCE UPON ITS PERSONAL INSPECTION
AND KNOWLEDGE OF THE AIRCRAFT AND IN AN "AS-IS, WHERE-IS" AND "WITH ALL FAULTS"
CONDITION. SELLER HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY
REPRESENTATIONS, GUARANTIES OR WARRANTIES WHATSOEVER WITH RESPECT TO (i) THE
AIRCRAFT (INCLUDING, WITHOUT LIMITATION, ANY ACCESSORIES, ACCESSIONS, ENGINES,
EQUIPMENT, LOGBOOKS, CERTIFICATES AND MAINTENANCE RECORDS RELATED THERETO), (ii)
TITLE, POSSESSION, QUIET ENJOYMENT OR THE LIKE IN THIS DISPOSITION OR SALE OF
THE AIRCRAFT, AND/OR (iii) THIS XXXX OF SALE, INCLUDING, BUT NOT LIMITED TO, ANY
REPRESENTATIONS, WARRANTIES OR GUARANTIES CONCERNING THE AIRWORTHINESS,
CONDITION, DESIGN, CAPACITY OR DURABILITY OF THE AIRCRAFT, COMPLIANCE OF THE
AIRCRAFT WITH ANY LAW, RULE, REGULATION OR STANDARD PERTAINING THERETO OR THE
CONFORMITY OF THE AIRCRAFT TO THE SPECIFICATIONS AND/OR PROVISIONS OF THIS XXXX
OF SALE OR OF ANY OTHER DOCUMENT OR AGREEMENT OR OTHERWISE, QUALITY OF THE
MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE,
USE, OPERATION, VALUE OR SAFETY, THE ABSENCE OF ANY PATENT, TRADEMARK OR
COPYRIGHT INFRINGEMENT OR LATENT DEFECT (WHETHER OR NOT DISCOVERABLE BY BUYER OR
ANY OTHER PARTY, PERSON OR ENTITY OF ANY KIND WHATSOEVER); AND SELLER HEREBY
DISCLAIMS AND BUYER (ON ITS BEHALF AND ON BEHALF OF ANY OTHER PARTY, PERSON OR
ENTITY OF ANY KIND WHATSOEVER) BY ITS ACCEPTANCE OF THIS XXXX OF SALE HEREBY
WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES, GUARANTIES, OBLIGATIONS AND
LIABILITIES OF SELLER AND RIGHTS, CLAIMS AND REMEDIES OF BUYER (OR OF ANY OTHER
PARTY, PERSON OR ENTITY OF ANY KIND WHATSOEVER) AGAINST SELLER, EXPRESS
OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY OF THE AIRCRAFT,
THE TITLE, POSSESSION, THE QUIET ENJOYMENT OR THE LIKE IN THIS DISPOSITION OR
SALE OF THE AIRCRAFT AND/OR ANY NON-CONFORMANCE OR DEFECT (PATENT OR LATENT,
WHETHER OR NOT DISCOVERABLE BY BUYER OR ANY OTHER PARTY, PERSON OR ENTITY OF ANY
KIND WHATSOEVER) CONCERNING THE AIRCRAFT, INCLUDING BUT NOT LIMITED TO (a) THE
QUALITY, CONTENT AND CONDITION OF THE AIRCRAFT, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (b) ANY IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, (c) ANY
OBLIGATIONS, LIABILITY, RIGHT, CLAIM OR REMEDY IN CONTRACT OR IN TORT (STRICT,
ABSOLUTE OR OTHERWISE), WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SELLER,
ACTUAL, ACTIVE, PASSIVE OR IMPUTED, AND (d) ANY OBLIGATION, LIABILITY, RIGHT,
CLAIM OR REMEDY FOR DELAY OR NON-DELIVERY OF THE AIRCRAFT, COST OF "COVER", LOSS
OF OR DAMAGE TO THE AIRCRAFT, ANY DIRECT OR INDIRECT DAMAGE TO PERSONS OR
PROPERTY, LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO THE AIRCRAFT OR FOR ANY
OTHER DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES EVEN IF THE SELLER IS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale this ____ day of
August, 2004.
FLEET NATIONAL BANK
By: ______________________________
Name:_____________________________
Title:_____________________________
2
Exhibit 2
FAA XXXX OF SALE
Exhibit 3
FAA LEASE TERMINATION AGREEMENT
Fleet National Bank and Priority Fulfillment Services, Inc., as lessor and
lessee, respectively, under that certain Aircraft Lease, as more particularly
described in Annex I attached hereto (the "Lease"), with respect to the
Aircraft, as more particularly described in Annex I attached hereto, hereby
terminate the Lease and release the Aircraft from all of the terms and
conditions thereof.
This FAA Lease Termination Agreement may be executed in counterparts, each
of which when executed and delivered shall be deemed an original and all
together shall constitute one and the same instrument.
Dated as of August __, 2004.
Lessor:
FLEET NATIONAL BANK
By:__________________________________
Name:________________________________
Title:____________________________
Lessee:
PRIORITY FULFILLMENT SERVICES, INC.
By:__________________________________
Name:________________________________
Title:____________________________
ANNEX I TO FAA LEASE TERMINATION AGREEMENT
Description of Lease
Aircraft Lease (N166DT) dated as of March 3, 1999 between Fleet National
Bank, as lessor, and Priority Fulfillment Services, Inc. (as assignee of
Daisytek, Incorporated), as lessee, which was recorded by the Federal Aviation
Administration on March 6, 1999 and assigned Conveyance No. X139002, as
supplemented and amended by the following described instruments:
FAA Date Of FAA FAA FAA
Instrument Instrument Recording Date Conveyance No.
---------- ---------- -------------- --------------
Lease Supplement as of 03/03/99 03/06/99 X139002
No. 1
Lease Supplement as of 03/03/99 03/06/99 X139002
Xx. 0
Xxxxxxxxx Xx. 0 as of 09/15/99 10/12/99 PP012904
Aircraft Lease
Assignment,
Assumption and
Amendment
Agreement as of 07/03/00 08/17/00 HK018697
Description of Aircraft
Learjet Inc. Model 31A aircraft which consists of the following components:
(a) Airframe bearing U. S. Registration Xxxx N183ML and manufacturer's
serial number 183.
(b) Two (2) AlliedSignal Model TFE731-2-3B aircraft engines respectively
bearing manufacturer's serial numbers 99492 and 99491 (which has 750 or more
rated takeoff horsepower or the equivalent of such horsepower).
Exhibit 4
DELIVERY RECEIPT
Priority Fulfillment Services, Inc. hereby acknowledges and accepts
receipt of, and delivery from, Fleet National Bank of the following Aircraft:
Learjet Inc. Model 31A aircraft which consists of the following components:
(a) Airframe bearing U. S. Registration Xxxx N183ML and manufacturer's
serial number 183.
(b) Two (2) AlliedSignal Model TFE731-2-3B aircraft engines respectively
bearing manufacturer's serial numbers 99492 and 99491 (which has 750 or more
rated takeoff horsepower or the equivalent of such horsepower).
DELIVERY DATE: ____________________
DELIVERY LOCATION: ________________
PRIORITY FULFILLMENT SERVICES, INC.
By:________________________________
Name:_____________________________
Title:____________________________
fleet\daisy\5-2004 lease termination
