Exhibit 10.1
AIRCRAFT PURCHASE AND SALE AGREEMENT
THIS AIRCRAFT PURCHASE AND SALE AGREEMENT is dated June 19, 2001, by and
between Meadowlark Acquisitions, Inc., a Delaware corporation doing business at
2036 Washington Street, Hanover, Massachusetts ("Seller"), and AP IV Holdings,
Inc., a Delaware corporation with an address of 103 Foulk Road, Suite 202
Wilmington, Delaware 19803 ("Buyer").
On June 1, 2001, Cargill, Incorporated a Delaware corporation ("Cargill"),
and 280 Holdings II, Inc., a Delaware corporation ("280 Holdings"), entered into
a Letter of Intent (the "Letter of Intent") with respect to the sale by Cargill
to 280 Holdings of the Aircraft (as defined below). Pursuant to an Assignment
Agreement dated as of June 19, 2001 between Cargill and Seller, Cargill assigned
to Seller, and Seller assumed from Cargill, all of Cargill's rights and
obligations under the Letter of Intent, including, without limitation, the
obligation to sell the Aircraft to 280 Holdings. Pursuant to an Assignment
Agreement dated as of June 15, 2001, 280 Holdings assigned to Buyer all of 280
Holdings' rights and obligations under the Letter of Intent, including, without
limitation, the right to acquire the Aircraft.
SECTION 1 PURCHASE AND SALE OF AIRCRAFT
1.1 Agreement to Sell and Purchase. Subject to the terms and conditions
set forth in this Agreement, Seller hereby agrees to sell, transfer and deliver
to Buyer, and Buyer agrees to purchase from Seller, that certain used Gulfstream
IV-SP aircraft, Serial Number 1252, Registration N252C, together with all items
of equipment, instruments, components, and accessories installed therein or
thereon, and certain loose equipment, all as set forth in Exhibit A attached
hereto (collectively, the "Aircraft").
1.2 Purchase Price; Terms of Payment. The Purchase Price of the
Aircraft shall be Twenty-Three Million Six Hundred Thousand U.S. Dollars (US
$23,600,000), which shall be paid as follows:
(a) Buyer has placed a deposit of Two Hundred Fifty Thousand U.S.
Dollars (US $250,000) (the "Deposit") with Insured Aircraft Title Service, Inc.
in Oklahoma City, Oklahoma, as Escrow Agent (the "Escrow Agent"), in accordance
with the terms of an escrow agreement dated June 1, 2001 among Buyer, Seller and
the Escrow Agent (the "Escrow Agreement").
(b) Upon execution and delivery of this Agreement by Buyer and
Seller and the execution and delivery by Cargill of a letter agreement in the
form of Exhibit B hereto, Buyer will place a down payment (the "Down Payment")
of Two Million One Hundred Thousand U.S. Dollars (US $2,100,000) with the Escrow
Agent in accordance with the terms of the Escrow Agreement.
(c) Upon Seller's delivery and the Buyer's acceptance of the
Aircraft in accordance with this Agreement, (the "Closing"), (i) Buyer shall
cause the Escrow Agent to deliver the balance of the Purchase Price (Twenty-One
Million Two Hundred Fifty Thousand U.S. Dollars (US $21,250,000)) (the
"Balance"), as well as the Deposit and Down Payment, by wire transfer of
immediately available U.S. funds to such accounts as may be designated by Seller
(including an amount which shall satisfy loans made to Seller by Seller's lender
to an account for the benefit of Seller's lender) not less than one business day
prior to the Closing and Seller shall credit all such amounts against payment of
the Purchase Price.
(d) Buyer shall be liable for any sales, transfer, excise or similar
taxes and duties applicable to the purchase and use of the Aircraft by Buyer,
and Seller shall be liable for any taxes, fees, commissions or other charges
becoming due as a result of the sale of the Aircraft (including any taxes
imposed on Seller that are based on or measured by the income of Seller) and any
taxes (including liens on the Aircraft) for which the Buyer may become liable as
a transferee. Each party shall indemnify and hold the other party harmless from
and against any losses or expenses incurred by such party arising out of or
resulting from any such taxes, duties or other charges.
1.3 Delivery of the Aircraft
(a) Seller shall deliver, and Buyer shall accept, the Aircraft at a
mutually acceptable facility in Manchester, New Hampshire, or such other
location selected by Buyer and reasonably acceptable to Seller, on the fifth
business day after the completion of any repairs required pursuant to Section
2.2, or earlier upon Buyer's approval. Buyer shall transmit to Seller, via
facsimile, a copy of fuel receipt evidencing the purchase of fuel in the State
of New Hampshire following the delivery and acceptance of the Aircraft in such
State.
(b) Title to, and risk of loss, injury, destruction, or damage to
the Aircraft by fire or other casualty or occurrence, shall pass to Buyer at the
time of Seller's delivery, and Buyer's acceptance, of the Aircraft. Seller shall
be responsible for maintaining all hull and liability insurance for the Aircraft
until the Aircraft is delivered to, and accepted by, Buyer.
(c) Seller agrees that the Escrow Agent shall give to Buyer, at the
time of delivery of the Aircraft and upon receipt by the Escrow Agent of the
Balance, (i) an FAA Bill of Sale, Form 8050-2, (ii) a Release or Release and
Disclaimer, as appropriate, and a Termination of Lease certificate (collectively
the "Release Documents") and (iii) such other forms evidencing the sale, the
release of all liens and the termination of all leases as may be required by any
other applicable law or regulation, in each case in the normal and usual
recordable form to evidence transfer of good and marketable title to Buyer, free
and clear of all claims, leases, liens, mortgages, or encumbrances of any kind
or character.
(d) Seller will deliver to Buyer at the time of delivery of the
Aircraft all log books (which shall include entries, if applicable, with respect
to (i) the fireblocking of the Aircraft in accordance with FAR Part 25.853 "c"
and (ii) the incorporation of Change 7 to the Aircraft TCAS), a complete and
up-to-date set of maintenance manuals, flight and operations manuals, wiring
diagrams, parts catalogs, appropriate documentation for all life-limited
components and other records, (collectively, the "Records") pertaining to the
Aircraft and its operation. Seller represents and warrants that such Records are
complete and accurate in all respects.
(e) On the business day immediately preceding the Closing (i) Seller
shall deliver to the Escrow Agent original executed copies of the completed FAA
Bill of Sale, Form 8050-2 and Release Documents, each in recordable form (with a
copy of each such document, marked "copy", also delivered to Buyer's counsel)
and (ii) upon receipt by the Escrow Agent of the documents listed in clause (i),
Buyer shall deliver the Balance to the Escrow Agent. Upon delivery and
acceptance of the Aircraft, Buyer shall deliver an executed letter of acceptance
in the form of Exhibit C hereto (the "Letter of Acceptance") to the Escrow Agent
and, upon receipt of such Letter of Acceptance, the Escrow Agent shall
immediately deliver (x) the full Purchase Price to the accounts designated by
Seller as provided in Section 1.2(c) above, (y) to Buyer's counsel for filing
with the United States Federal Aviation Administration ("FAA") all documents
necessary to evidence the transfer of ownership of the Aircraft to Buyer, the
release of all liens thereon and the termination of all leases thereof,
including the FAA Bill of Sale, Form 8050-2 and the Release Documents and (z)
any excess funds (following delivery of the Purchase Price to the accounts
designated by Seller) held by the Escrow Agent to an account designated by
Buyer.
(f) Upon delivery of the Aircraft, Seller shall certify that all
systems on the Aircraft function in accordance with applicable manufacturer's
specifications.
1.4 Failure or Delay in Performance.
(a) Seller shall not be liable to Buyer for any delay in making
delivery of the Aircraft for any cause whatsoever; provided that if Seller shall
fail (i) to cause the repairs to be made that are required pursuant to Section
2.2 or (ii) to make delivery within 10 days after the date of completion of any
repairs required pursuant to Section 2.2 and such failure is not due to fire,
flood, strikes or other industrial disturbances, accidents, war or other causes
beyond the control of Seller or (iii) to make delivery within 20 days after the
date of completion of any repairs required pursuant to Section 2.2 for any other
reason, Buyer's sole recourse against Seller shall be return of the Deposit and
the Down Payment, together with reimbursement of the costs of the pre-purchase
inspection, the Escrow Agent's fees and expenses and reasonable out-of pocket
attorneys' fees and expenses incurred by Buyer, unless Buyer agrees to a later
scheduled delivery date. The Escrow Agent shall refund the Deposit and the Down
Payment and Seller shall refund such pre-purchase inspection and other costs and
expenses within three business days of the Buyer's written notice of such
failure to Seller and Escrow Agent. Buyer agrees to deliver such notice only
after a good faith reasonable attempt by Buyer to reach agreement with Seller
regarding a cure of the breach or failure that gave rise to such notice. Upon
Buyer's receipt of the Deposit, and Down Payment, and such costs, this Agreement
(other than Section 3.5) shall terminate and neither party shall have any
liability to the other.
(b) If the Closing shall not occur solely by reason of a material
breach by Buyer of any of its material obligations hereunder, Seller agrees that
its sole recourse against Buyer shall be to retain the Down Payment. Upon
Seller's receipt of the Down Payment, pursuant to this Section 1.4(b), this
Agreement (other than Section 3.5) shall terminate and neither party shall have
any liability to the other. The Escrow Agent shall deliver the Down Payment to
Seller following receipt of a written notice signed by Buyer and Seller
regarding such breach by Buyer. Concurrent with the delivery of the Down Payment
to Seller pursuant to this Section 1.4(b), the Escrow Agent shall return the
Deposit to Buyer.
SECTION 2 CONDITION OF THE AIRCRAFT
2.1 It shall be a condition precedent to Buyer's obligation to purchase
the Aircraft that, at the time of delivery, Buyer has confirmed that:
(a) The Aircraft is in an airworthy condition with all systems
functioning to Buyer's satisfaction and in accordance with any applicable
manufacturers' specifications.
(b) The Aircraft is free of material corrosion, has no damage
history (it being understood that as used herein "damage history" does not
include normal ordinary course wear and tear on the Aircraft) and all FAA Form
337s for major repairs due to damage to the Aircraft have been issued.
(c) The Aircraft shall be current with respect to its manufacturer's
recommended maintenance program, with all calendar and hourly inspections
current through the time of delivery, and Buyer shall have received satisfactory
evidence thereof.
(d) The Aircraft shall be in compliance with (i) all FAA
Airworthiness Directives, (ii) all Mandatory Aircraft Service Bulletins, (iii)
all Gulfstream Alert Customer Bulletins, (iv) all Aircraft Service Changes
listed on Exhibit D hereto and (v) any other applicable regulations of the FAA.
(e) The Aircraft shall be delivered with less than 3,275 hours of
total time on the airframe and the engines and with at least 50% life remaining
on each brake.
(f) Seller shall have removed all logos on the exterior and
interior of the Aircraft.
2.2 Inspection. Within two business days following the execution and
delivery of this Agreement by the parties hereto, Seller shall make the Aircraft
and all items specified in Section 1.3(d) above available to Buyer at Gulfstream
Aerospace for a pre-purchase inspection and, following completion of such
inspection, a test flight to determine that the Aircraft conforms with
conditions specified in Section 2.1. During any such flight, care, custody, and
control of the Aircraft shall remain at all times with Seller. Such test flight
shall not exceed four hours in duration. In addition, a representative of Buyer
shall be entitled to participate in the flight from the present location of the
Aircraft to the pre-purchase inspection site. All costs of the pre-purchase
inspection shall be borne by Buyer, provided, however, that Seller shall bear
the costs of any test flights (other than the cost of fuel used during such test
flight, which shall be borne by Buyer) and movement of the Aircraft for said
inspection. Buyer shall provide Seller with the written report prepared by
Gulfstream Aerospace setting forth the results of such inspection, upon receipt
of which Seller shall promptly cause those repairs that are set forth in such
report as are required in order for the Aircraft to meet the conditions set
forth in Section 2.1 to be completed. Seller shall not be obligated to make any
other repairs to the Aircraft. All costs and expenses for repairs necessary to
make the Aircraft conform with the conditions specified in Section 2.1 shall be
borne by Seller. If the existence of any discrepancies found as a result of
Buyer's pre-purchase inspection has an adverse effect on the airworthiness of
the Aircraft, following completion of all repairs necessary to correct such
discrepancies Seller shall conduct an additional test flight, which shall not
exceed four hours in duration, at Seller's expense, in which representatives of
Buyer shall be entitled to participate. Upon completion of the repairs set forth
in the report of Gulfstream Aerospace, Buyer and Seller shall furnish to the
other any post-repair report it receives from Gulfstream Aerospace, which report
shall confirm that all such repairs have been made and the party receiving such
report from the other shall acknowledge such receipt. Buyer, at its own expense,
and with the concurrence of Seller (which concurrence shall not be unreasonably
withheld or delayed) may have any additional inspection or procedure performed
beyond the basic pre-purchase inspection checklist.
2.3 Warranties of Seller and Disclaimer. THE AIRCRAFT IS A USED AIRCRAFT
AND IS BEING SOLD ON AN "AS IS" BASIS (AFTER GIVING EFFECT TO ANY REPAIRS MADE
IN ACCORDANCE WITH SECTION 2.2) AND SELLER DISCLAIMS AND BUYER WAIVES ALL
WARRANTIES, GUARANTIES, OR REPRESENTATIONS OF ANY KIND OR NATURE, EITHER EXPRESS
OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE AIRCRAFT
(INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION WITH RESPECT TO ANY
OBLIGATION OR LIABILITY IN TORT, NEGLIGENCE OR WITH RESPECT TO FITNESS FOR A
PARTICULAR PURPOSE, MECHANTABILITY, LOSS OF USE OR PROFITS, OR CONSEQUENTIAL
DAMAGES AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE), except that Seller represents and warrants that, at
the time of the delivery of the Aircraft:
(a) Seller will have full corporate power, authority and legal
right to transfer title to the Aircraft to Buyer;
(b) Seller will have good title to the Aircraft, free and clear of
all liens, claims, charges, interests and encumbrances of any kind
whatsoever (other than a lien granted to a lender of Seller that shall be
discharged concurrently with the delivery to and acceptance of the
Aircraft by Buyer), and upon transfer of the Aircraft to Buyer, Buyer will
have good title to the Aircraft, free and clear of all liens, claims,
charges, interests or encumbrances, other than liens which Buyer may cause
to be placed on the Aircraft;
(c) Upon delivery of the Aircraft to Buyer, each of the conditions
specified in Section 2.1(a) through (f) inclusive shall be true and
correct; and
(d) The warranties expressed in Section 2.3(a) and (b) shall survive
for a period of two years from the date of the delivery and acceptance of
the Aircraft.
2.4 General Representations. Buyer and Seller each represents to the
other that, as of the Closing,
(a) It has the power and authority to enter into this Agreement;
(b) This Agreement has been duly authorized, executed and delivered
by it and constitutes the legal, valid and binding obligation of such
party, enforceable against it in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and by general principles of
equity regardless of whether considered in a proceeding in equity or
at law;
(c) The execution and delivery of this Agreement by it does not
conflict with or result in any breach of, constitute any default under,
or result in the creation of any lien, charge or encumbrance pursuant
to any applicable rule or regulation, any term or provision of its
certificate of incorporation or by-laws or any judgment, order, writ,
injunction or decree of any court, commission, board or governmental
agency, or contravene any mortgage, lease, license, contract or other
agreement to which it is a party or by which it is bound; and
(d) All consents or approvals required to be received by it in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
obtained or waived.
SECTION 3 MISCELLANEOUS
3.1 Assignment of Warranties. To the extent that any manufacturers'
warranties (express or implied) are still in effect with respect to the Aircraft
(other than warranties which by their terms are unassignable or which would be
extinguished by their assignment), Seller agrees to assign such warranties to
Buyer at the time of delivery to Buyer, and acceptance by Buyer, of the Aircraft
and agrees to take such other reasonable steps, or to cause Cargill to take such
reasonable steps, as will enable Buyer to process warranty claims directly with
the manufacturers. Seller shall also assign to Buyer at the Closing all of its
rights and interests in the computerized aircraft maintenance records program
for the Aircraft and such records shall be current through the Closing and all
fees for such program for the period through the Closing shall have been paid by
Seller.
3.2 Benefit and Binding Effect; Governing Law. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns and shall be interpreted and construed
according to the laws of the State of New York, applicable to agreements made
and to be performed entirely within such State. Neither party may assign its
rights or obligations under this Agreement to any other person or entity without
the prior written consent of the other party; provided that Buyer shall have the
right to assign this Agreement to Triarc or any subsidiary thereof.
3.3 Severability. If any one or more provisions of this Agreement shall be
found to be illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
3.4 Execution in Counterparts. This Agreement may be executed by facsimile
and in counterparts, each of which shall constitute one and the same original
document.
3.5 Broker's Fees. Buyer and Seller each represent and warrant to the
other that there are no brokerage commissions, finder's fees or similar fees or
commissions payable by them or Cargill in connection with this Agreement or the
transactions contemplated hereby, except for Seller's obligation to pay a
certain brokerage fee to Gulfstream Aerospace Corporation. Buyer and Seller each
agree to indemnify and hold harmless the other party from the against all
losses, claims and expenses incurred by such party (including, without
limitation, reasonable attorney's fees and expenses incurred in defending
against any such claim) with respect to or arising out of any claim or any
person retained or claiming to be retained by it (or by Cargill, in the case of
indemnification obligation of Seller pursuant hereto) in connection with the
transactions contemplated hereby.
3.6 Use of Aircraft Prior to Closing. After the date of the inspection
referred to in Section 2.2 and prior to the delivery to and acceptance by Buyer
of the Aircraft, without the prior consent of Buyer, Seller shall not use the
Aircraft, and shall not permit the Aircraft to be used, in excess of five flight
hours except in connection with any repairs required as a result of such
inspection or as otherwise required hereby.
3.7 Entire Agreement. This Agreement, the Escrow Agreement, all exhibits
hereto, and all documents and certificates to be delivered by the parties
pursuant hereto collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter of this Agreement.
This Agreement supersedes all prior agreements (written or oral) between Buyer
and Seller (including, without limitation, the letter agreement dated June 1,
2001) with respect to the subject matter of this Agreement. This Agreement may
not be amended, supplemented, or modified except by an agreement in writing
which makes specific reference to this Agreement and which is signed by each of
the parties hereto.
3.8 Jurisdiction. Each of the parties hereto agrees that any suit, action
or proceeding with respect to this Agreement shall be brought in any federal
court located in the City of New York or in any federal or state court located
in Albany, New York, and each party hereby irrevocably submits to the exclusive
jurisdiction of such courts with respect to any such suit, action or proceeding.
Buyer and Seller hereby waive any objection to the jurisdiction of such courts
or that the action, suit or proceeding is brought in an inconvenient forum or
that the venue of such court is improper. Seller hereby appoints CT Corporation
at its office at 111 8th Avenue, New York, New York 10011 (the "Agent"), as its
authorized agent to accept and acknowledge on such party's behalf service of any
and all process that may be served in any such suit, action or proceeding. Any
and all service of process and any other notice if any relating to such suit,
action or proceeding shall be effective against any party if given personally or
by registered or certified mail, return receipt requested, or against Seller by
personal service on the Agent, or by any other manner permitted by law.
IN WITNESS WHEREOF, this Agreement has been executed by Buyer and Seller
as of the date first above written.
AP IV HOLDINGS, INC.
By: Andrew Panaccione
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Name: Andrew T. Panaccione
Title: President
MEADOWLARK ACQUISITIONS, INC.
By: Mary Ellen O'Brien
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Name: Mary Ellen O'Brien
Title: Assistant Secretary
List of Omitted Exhibits
Exhibit A - Aircraft Specification Sheet
Exhibit B - Letter Agreement between AP IV Holdings, Inc. and Cargill,
Incorporated
Exhibit C - Letter of Acceptance
Exhibit D - Aircraft Services Changes
The registrant hereby agrees to furnish supplementally a copy of any
omitted exhibit to the Securities and Exchange Commission upon request.