EXHIBIT 99.2.(f)
AIRCRAFT PURCHASE AGREEMENT (N931MC)
DATED AS OF SEPTEMBER 30, 1996
By and Between
INVESTORS ASSETS HOLDING CORP.,
not individually but solely as Trustee
and
NORTHWEST AIRLINES, INC., as Buyer
For One (1) MD-82 Aircraft
"This document contains trade secrets and commercial, financial, and proprietary
information which is privileged and confidential and which shall not be
disclosed to any person, governmental agency, company, corporation or other
party except as such disclosure is required by law."
AIRCRAFT PURCHASE AGREEMENT
---------------------------
INDEX
-----
Section Page
------- ----
1. Subject Matter of Sale..................................1
2. Purchase Price and Method of Payment....................2
3. Inspection and Acceptance...............................2
4. Condition of Aircraft...................................3
5. Opinion of FAA Counsel..................................3
6. Closing, Conditions Precedent...........................4
7. Defaults by Seller; Force Majeure.......................6
8. Destruction.............................................7
9. Default of Buyer........................................7
10. Warranties; Representations.............................7
11. Taxes...................................................9
12. Assignment.............................................10
13. Duty to Cooperate and Approvals........................11
14. Public Announcements...................................11
15. Headings...............................................11
16. Termination for Insolvency.............................11
17. Commissions and Brokers, Fees and Expenses.............12
18. Disclaimer of Consequential Damages....................12
19. Notices and Requests...................................12
20. Entire Agreement.......................................13
21. Governing Law; Severability; Timing....................13
22. Counterparts...........................................14
23. Facsimile Signatures...................................14
24. Insurance..............................................14
EXHIBITS
--------
Exhibit A....... The Aircraft
Exhibit B....... The Data
Exhibit C....... Delivery Receipt
Exhibit D....... Lease Termination Form
Exhibit E....... Warranty Bill of Sale
Exhibit F....... Assignment of Warranties
Exhibit G-1..... Seller Officer's Certificate
Exhibit G-2..... Buyer Officer's Certificate
AIRCRAFT PURCHASE AGREEMENT
---------------------------
This Agreement, made and entered into as of this 30th day of September,
1996, is by and between Investors Assets Holding Corp., not in its individual
capacity but solely as trustee ("Seller") under Third Lease Agreement (N931MC)
dated as of July 29, 1994, (the "Lease") concerning McDonnell Douglas MD-82
Aircraft U.S. Reg. No. N93IMC between Seller and Northwest Airlines, Inc., a
Minnesota corporation ("Buyer").
Witnesseth:
----------
WHEREAS, Buyer currently leases on (1) used MD-82 aircraft, Federal
Aviation Administration ("FAA") Registration No. N931MC as more fully described
in exhibit A hereto from Seller pursuant to a lease agreement described in
Exhibit D, the Lease Termination; and
WHEREAS, Buyer desires to purchase such used aircraft, engines, parts
and accessories and related records and manuals from Seller and Seller desires
to sell such used aircraft, engines, parts and accessories and related records
and manuals to Buyer; and
WHEREAS, contemporaneously with the sale and purchase of the aircraft,
(i) the Lease will be terminated,
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and certain other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and upon the terms and
conditions herein specified, Seller and Buyer agree as follows:
1. Subject Matter of Sale.
----------------------
1.01. Under and pursuant to the terms and conditions hereinafter set
forth, Seller shall sell and deliver to Buyer, and Buyer shall purchase and
accept delivery from Seller, the following:
(a) One (1) used McDonnell Douglas MD-82 aircraft with two (2)
Pratt & Whitney JT8D-217 aircraft engines consisting of an airframe, including
any and all avionics, appliances, parts, furnishings, instruments, accessories
and other equipment installed therin or thereon, and the above described
engines, all of which constitute the "Aircraft". The Aircraft is more fully
described in Exhibit A hereto.
(b) The flight, engineering and maintenance manuals, drawings,
documents and other data pertaining to the Aircraft and in Seller's or Buyer's
possession (the "Manuals"), and the operational and maintenance records
pertaining to the Aircraft required by the FAA and in Seller's possession (the
"Records"). (The Manuals and the
1
Records are sometimes hereinafter collectively referred to as the ("Data)). The
Data will be furnished to Buyer by Seller at no additional charge to Buyer as a
part of the consideration for the payment of the purchase price set forth in
Section 2.01 herein.
2. Purchase Price and Method of Payment.
------------------------------------
2.01. The purchase price ("Purchase Price") for the Aircraft and Data
is Thirteen Million Two Hundred Thousand dollars ($13,200,000).
N931MC $13,200,000
2.02. Upon delivery of the Aircraft and Data, Buyer shall pay to Seller
the Purchase Price.
2.03. All payments hereunder shall be made by wire transfer of
immediately available funds to:
Equis Financial Group
Fleet Bank, N.A.
80 Pine Street
New York, NY 10005
ABA #021-200-339
Account # 2181-01-7572
3. Inspection and Acceptance
-------------------------
3.01 Because the Aircraft is currently in Buyer's possession pursuant
to the Lease, the Aircraft shall be delivered to Buyer at Buyer's expense and
risk of loss or damage at such point in the continental United States as Buyer
shall select, on the date specified for delivery for the Aircraft in Exhibit A
hereto.
3.02 Seller shall transfer title to the Data to Buyer concurrently with
the delivery of the Aircraft hereunder. Any such Data not already in Buyer's
possession shall be located at Buyer's Minneapolis, Minnesota facility.
3.03 DISCLAIMER OF OTHER WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY
PROVIDED IN SECTION 10 AND EXHIBIT E, BUYER AGREES THAT THE AIRCRAFT IS
BEING SOLD "AS IS' WITHOUT WARRANTY OR REPRESENTATION, EITHER EXPRESS OR
IMPLIED. BUYER ACKNOWLEDGES THAT SELLER IS NOT THE MANUFACTURER OF THE
AIRCRAFT AND DATA NOR A DEALER IN SIMILAR EQUIPMENT AND HEREBY DISCLAIMS
ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO ANY
MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE DESIGN OR CONDITION
OF THE AIRCRAFT
2
AND DATA, ITS MERCHANTABILITY OR ITS FITNESS FOR USE OR FOR ANY
PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE
AIRCRAFT AND DATA. IN NO EVENT SHALL THE SELLER BE LIABLE FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES OR FOR STRICT OR ABSOLUTE LIABILITY IN TORT.
BUYER AGREES TO INDEMNIFY AND HOLD SELLER HARMLESS FROM AND AGAINST ANY
AND ALL LIABILITIES, CLAIMS, JUDGMENTS, OR DEMANDS FOR DAMAGES TO
PROPERTY OR INJURIES OR DEATH TO PERSONS ARISING FROM OR ATTRIBUTABLE TO
THE AIRCRAFT AND DATA OR PART THEREOF, AND FOR ANY CLAIM OR AWARD FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES. BUYER SHALL USE ITS BEST EFFORTS TO
RECEIVE A DISCLAIMER OF WARRANTY WITH RESPECT TO SELLER SIMILAR TO THAT
GIVEN TO SELLER BY BUYER IN THE FIRST PARAGRAPH OF THIS SECTION 3.03
FROM ANY PURCHASER TO WHOM BUYER MAY SELL THE AIRCRAFT.
3.04 [Intentionally Left Blank]
3.05 Upon delivery of the Aircraft hereunder, the parties shall execute
and deliver to each other duplicate originals of Delivery Receipts,
substantially in the form of Exhibit C.
3.05 Contemporaneously with delivery of the Aircraft to Buyer
hereunder, Lessor shall terminate the Lease of such Aircraft to Lessor and shall
execute and deliver to Buyer at the closing a termination of each Lease in the
form of Exhibit D attached hereto.
Following the termination of the Lease, Buyer shall have no obligation under the
Lease and the Lease shall be terminated and of no further force or effect
provided, however, that those provisions of the Lease stated to survive the
termination of the Lease shall remain in effect. Buyer and Seller agree that
Seller shall have no obligations under Section 7.1(c) of the Lease which survive
the transfer of title to the Aircraft from Seller to Buyer.
3.07 The parties shall deliver to each other such documents and other
items as is required herein.
4. Condition of Aircraft.
---------------------
4.01. Until delivery and transfer of title to the Aircraft to Buyer
hereunder, such Aircraft shall be maintained and repaired by Buyer in Accordance
with the Lease.
5. Opinion of FAA Counsel.
----------------------
5.01. On the date of closing the purchase of the Aircraft hereunder,
Buyer shall have received an opinion of Crowe & Dunlevy, P.C., Oklahoma City,
Oklahoma, as to matters
3
related to the filing and recordation system of the FAA, including Seller's
title to the airframe, the absence of liens on the airframe and engines, (except
for any and all liens or encumbrances created by Buyer or as the result of Buyer
operating the Aircraft) certain documents being in proper form for filing and
having been filed for recordation with the FAA and such other matters as are
appropriate and customary for the transactions contemplated hereby. Such opinion
shall be dated as of the date of closing.
6. Closing, Conditions Precedent.
-----------------------------
The transactions and acts set forth in this Section 6 shall be per-
formed at the time of delivery to Buyer of the Aircraft in the order set forth
below but shall be deemed to have occurred simultaneously.
6.01. At delivery of the title to the Aircraft to Buyer, Seller shall
deliver to Buyer or Buyer's designee the following documents (fully executed and
in proper form for filing), the delivery of which are conditions precedent to
Buyer's obligation to pay the Purchase Price pursuant to this Agreement:
(a) A duly executed FAA form Bill of Sale (AC Form 8050-2 or its
equivalent) conveying to Buyer all of Seller's right, title and interest
in and to the Aircraft as set forth in the Bill of Sale, and a duly
executed long form Warranty Bill of Sale for the Aircraft, substantially
in the form of Exhibit E hereto, the Data and the Certificate of
Airworthiness;
(b) True and correct copies of releases of any and all mortgages,
liens, charges, claims, security interests, leases and encumbrances of
any nature whatsoever against the Aircraft and the original copies of
such releases available for immediate filing with the FAA;
(c) The Data related to the Aircraft in Seller's possession (if any);
(d) A duly executed Assignment of Warranties for the Aircraft in the
form attached hereto as Exhibit F;
(e) A certificate of Seller in the form of Exhibit G-1 hereto,
certifying that the representations and warranties of Seller set forth
herein are true and correct (and such representations and warranties
shall be true and correct) on such delivery date;
(f) The Lease Termination provided for in Section 3.06 hereof; and
4
(g) Such other documents required by this Agreement.
6.02 At delivery of title to the Aircraft to Buyer, Buyer shall
deliver to Seller or Seller's designee the following items and documents (fully
executed and in proper form for filing), the delivery of which are conditions
precedent to Seller's obligation to deliver title pursuant to this Agreement:
(a) The Purchase Price for the Aircraft and Data as listed in Section
2.01;
(b) A Delivery Receipt, substantially in the form of Exhibit C
hereto, pertaining to the Aircraft;
(c) Evidence that application for registration of such Aircraft in
the name of Buyer has been duly made with the FAA;
(d) A certificate of Buyer in the form of Exhibit G-2 hereto,
certifying that the representations and warranties of Buyer set forth
herein are true and correct (and such representations shall be true and
correct) on such delivery date; and
(e) the Lease Termination provided for in Section 3.06 hereof.
6.03 [Intentionally left blank.]
6.04 No action or proceeding or governmental action shall have been
instituted or threatened before any court or governmental agency, nor shall any
order, judgement, or decree have been issued or proposed to be issued by any
court or governmental agency at the time of the Delivery Date to set aside,
restrain, enjoin, or prevent the completion and consummation of this Agreement
or the transactions contemplates hereby.
6.05 No change shall have occurred after the date of the execution and
delivery of this Agreement in applicable law or regulations thereunder or
interpretations thereof by appropriate regulatory authorities or any court that,
in the reasonable opinion of Seller, Buyer or their counsel, would make it a
violation of law or regulation for Seller or Buyer to enter into or perform any
transaction contemplated by this Agreement.
6.06 The FAA shall have confirmed to the Buyer in writing that the
Aircraft is eligible to be registered in the name of Buyer as set forth in the
FAA application for registration for
5
such Aircraft and application for registration of such Aircraft shall have been
duly made with the FAA as contemplated by Section 6.02 (c) of this Agreement.
6.07 Both Seller and Buyer shall deliver to Crowe & Dunlevy, P.C. in
Oklahoma City, Oklahoma in advance of closing of the Aircraft all documents that
are required to be filed with the FAA with respect to such Aircraft. Upon
delivery of the Aircraft and the filing of the Lease Termination, FAA Bill of
Sale, releases of any liens on the Aircraft, and such other documents as Buyer
or Seller reasonably deem necessary to effectuate the intents and purposes of
this Agreement, with the FAA Registration Office in Oklahoma City, Oklahoma,
title the Aircraft shall irrevocably vest in Buyer.
6.08 Seller's obligations to sell the Aircraft hereunder are
conditional upon the Aircraft remaining subject to the Lease until the closing
of the sale and purchase of such Aircraft in accordance with this Agreement.
7. Defaults by Seller; Force Majeure.
---------------------------------
7.01 The occurrence of one or more of the following events shall
constitute a default by Seller hereunder:
(a) Failure by Seller to timely tender delivery of any closing
document pursuant to the terms and in the condition required by this
Agreement; or
(b) Failure by Seller to observe or perform any material
obligation of Seller under this Agreement.
7.02 If any such default should occur and Seller does not cure such
default within ten (10) days after written request from Buyer to do so, it shall
constitute a "Seller's Event of Default" hereunder. Upon the occurrence of a
Seller's Event of Default, Buyer, without prejudice to any other remedy Buyer
may have against Seller for Buyer's damages resulting from Seller's Event of
Default, may, by written notice to Seller, terminate this Agreement in whole or
in part.
7.03 Subject to Section 8 below, Seller shall not be responsible nor
shall it be deemed a Seller's Event of Default, in whole or in part, hereunder
on account of its inability to perform this Agreement, or on account of delays
in Seller's performance of this Agreement, for any of the following reasons
(herein called "force majeure"):
-------------
(a) Loss of or damage to the Aircraft for any reason; or
(b) Any other cause occurring beyond the reasonable control of Seller
and not due to Seller's fault or neglect, including, but not limited to,
war, acts or government, insurrections, strikes, labor troubles, riots,
fires, floods, explosions, earthquakes, accidents, mechanical failures,
inability for any reason (after use of due diligence) to obtain
materials or parts for overhaul, or any act of God or of the public
enemy;
6
provided, however, that in the event of any force majeure, Seller agrees
-------------
to promptly notify Buyer thereof and of Seller's estimate of the
expected duration of delay resulting therefrom, and to use its
reasonable efforts to remedy such inability or delay so as to permit it
to perform hereunder.
7.04. If the delivery of the Aircraft shall be delayed by reason of
force majeure beyond one hundred eighty (180) days, Buyer shall have the option
- -------------
to terminate this Agreement with respect to the Aircraft, provided notice of
such termination shall be given by telex, telecopier or letter, delivered within
(30) days after such 180-day period.
8. Destruction.
-----------
8.01. If, prior to delivery, the Aircraft is destroyed or damaged
beyond repair, this Agreement shall terminate.
9. Default of Buyer.
----------------
9.01. The occurrence of one or more of the following events shall
constitute a default by Buyer hereunder:
(a) Buyer's failure to accept delivery of the Aircraft upon tender
thereof in the condition and at the time required by and otherwise in
accordance with this Agreement; or
(b) Buyer's failure to observe or perform any material obligation of
Buyer under this Agreement.
9.02. If any such default should occur and Buyer does not cure default
within ten (10) days after written request from Seller to do so, it shall
constitute a "Buyer's Event of Default" hereunder. Upon the occurrence of a
Buyer's Event of Default, Seller, without prejudice to any other remedy Seller
may have against Buyer for damages to Seller resulting from Buyer's Event of
Default, may, by written notice to Buyer, terminate this Agreement.
10. Warranties; Representations.
---------------------------
10.01. Buyer represents and warrants to Seller that at the time of
execution of this Agreement and at the time of delivery of the Aircraft
hereunder:
(a) Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Minnesota;
(b) Buyer has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
7
(c) The execution, delivery and performance of this Agreement
by Buyer has been duly authorized by all necessary corporate action and
will not violate, breach or contravene any provision of law or the
certificate of incorporation or the by-laws of Buyer, or any license or
permit under which Buyer conducts its business and will not result in
the breach of, or constitute a default under, any indenture, credit or
loan agreement, mortgage or other instrument to which Buyer is a party
or by which Buyer is bound; and this Agreement constitutes a valid,
legal and binding obligation of Buyer, enforceable in accordance with
its terms, subject to bankruptcy, insolvency or other laws affecting the
rights of creditors generallly and subject to general equitable
principles;
(d) There are no suits, actions or proceedings (including, but
not limited to, counter or cross-claims) pending, or to the knowledge of
Buyer, threatened, against Buyer before or by any United States,
federal, state, municipal or other governmental agency, department,
commission, board, bureau or instrumentality, which, if adversely
determined, would have a material adverse effect on Buyer's ability to
enter into, consummate, or carry out this Agreement or any obligation
hereunder; and
(e) No consent or approval of, filing with or notice to any
governmental autority, court or other party or person is rquired in
connection with the execution, delivery or performance by Buyer of this
Agreement or the transactions contemplated hereby other than those
obtained on or prior to the delivery date for the first Aircraft
delivered hereunder.
10.02. Seller shall assign to Buyer any and all assignable warranties
of manufacturers and maintenance and overhaul agencies, of and for the Aircraft
delivered by Seller to Buyer under the provisions of this Agreement, by delivery
to Buyer concurrently with the sale and delivery of the Aircraft, of an
Assignment of Warranties for the Aircraft, substantialy in the form of Exhibit F
hereto; and upon the request of Buyer, Seller shall give Buyer aid and
assistance in enforcing the rights of Buyer arising under such warranties, but
Buyer shall reimburse Seller for any expenses incurred by Seller in rendering
such assistance; and from time to time, upon the written request of Buyer,
Seller shall give notice to any such manufacturers and maintenance and overhaul
agencies of the assignment of such warranties to Buyer.
10.03 Seller represents and warrants to Buyer that at the time of
execution of this Agreement and at the time of the delivery of the Aircraft
hereunder:
(a) Seller is a corporation, duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts;
8
(b) Seller, as Trustee, has the corporate power to execute,
deliver and perform its obligations under this Agreement;
(c) No consent or approval of, filing with or notice to any
Massachusetts or federal governmental authority, court or other party or
person governing Seller's trust powers is required in connection with the
execution, delivery or performance by Seller of this Agreement or the
transactions contemplated hereby other than those obtained on or prior to
the delivery date for the Aircraft delivered hereunder;
(d) The execution, delivery and performance of this Agreement by
Seller, as Trustee, has been duly authorized by all necessary corporate
action and will not violate, breach or contravene any provision of law or
the certificate of incorporation or the by-laws of Seller or any license
or permit under which Seller conducts its business and will not result in
a breach of, or constitute a default under, any indenture, credit or loan
agreement, mortgage or other instrument to which Seller is a party or by
which Seller may be bound; and this Agreement constitutes, and each Bill
of Sale and Assignment of Warranties will constitute when delivered, a
valid, legal and binding obligation of Seller, enforceable in accordance
with its terms, subject to bankruptcy, insolvency or other laws affecting
the rights of creditors generally and subject to general equitable
principles; and
(e) There are not suits, actions or procedings (including, but
not limited to, counter or cross-claims) pending, or to the knowledge of
Seller, threatened against Seller before or by any federal, state,
municipal or other governmental agency, department, commission, board,
bureau or instrumentality, which, if adversely determined, would have a
material adverse effect on Seller's ability to enter into, consummate or
carry out this Agreement or any obligation hereunder.
10.05. Seller further represents and warrants that at the time of the
delivery of the Aircraft:
(a) Seller will have such title to the Aircraft and Data as set
forth in the Bill or Sale attached hereto as Exhibit E; and
(b) Seller will have full power and lawful authority to transfer
such title for the Data and Aircraft to Buyer and to assign all warranties
of the manufacturer of such Aircraft to Buyer pursuant to an Assignment of
Warranties in the form of Exhibit F (except to the extent that they are
non-assignable by their terms).
11. Taxes.
-----
11.01. The Purchase Price does not include any sales, use, excise or value
added tax, assessment, duty, or similar governmental charge or fee on the sale
of the Aircraft together with any related interest or penalties ("Taxes").
Subject to the following paragraph and
9
Section 11.02, Buyer agrees to assume and pay all Taxes, including penalties,
fines or interest thereon incurred in connection with the sale of the Aircraft
and to indemnify and hold Seller harmless from and against the payment of any
and all such Taxes. The parties agree to furnish each other with such documents
and certificates as they may reasonably request in connection with any claims
for exemption from the payment of the Taxes. Seller agrees to notify Buyer in
writing immediately of any claim for Taxes which might affect Buyer and of which
Seller becomes aware. Buyer shall have the right, at its sole cost and expense,
to contest the imposition, validity, applicability, or amount of any Taxes which
it is to pay under this Section 11.01, and to the extent permitted by law,
withhold payment during pendency of such contest and Seller agrees to contest
the validity, applicability or amount of any Taxes or to assist Buyer in such
protest on Buyer's request and at Buyer's sole cost and expense.
Buyer and Seller agree to cooperate in closing the sale of the Aircraft in a
jurisdiction within the United States that will render the purchase and sale
transaction free of any local, city, state, county, province, country, or
governmental transfer charges or taxes whatsoever to the Buyer and Seller.
Therefore, closing with funds and documents held in escrow may be a requirement
of the Buyer and/or Seller until the Aircraft is positioned in tax exempt
location.
11.02. Excluded from the coverage of Section 11.01 are (a) Taxes on, based
upon or measured by gross or net income or gross or net receipts (in each case,
other than taxes in the nature of sales or use taxes) (including, without
limitation, any capital gains taxes, minimum taxes or value-added taxes not in
the nature of sales or use taxes) or that are franchise Taxes, Taxes on doing
business or Taxes on, based on or measured by capital or net worth of Seller (in
each case, other than taxes in the nature of sales or use taxes), (b) Taxes
imposed by any taxing authority or governmental subdivision of a country other
than the United States, or (c) Taxes imposed prior and unrelated to delivery of
the Aircraft, and Buyer shall not be liable for any such taxes (except as may
otherwise be provided in the Lease).
12. Assignment.
----------
12.01. The rights and obligations created hereunder, shall not be
assignable or delegatable by either party hereto without the prior written
consent of the other party; but, subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the parties hereto, their respective
successors and assigns, except that Buyer may, without such consent, assign this
Agreement, provided that Buyer shall remain primarily liable for the
performance of its obligations hereunder and shall not be released from any
obligations by virtue of such assignment. No action taken under this assignment
provision by Buyer, any assignee of Buyer, or Seller, shall subject Seller to
any liability or expense to which it would not otherwise be subject under this
Agreement or modify in any way Seller's contract rights under this Agreement.
10
13. Duty to Cooperate and Approvals.
-------------------------------
13.01. Buyer and Seller shall cooperate in obtaining any necessary
government approvals or authorizations for this transaction, and each party will
provide copies thereof the other party.
14. Public Announcements.
--------------------
14.01. Without the prior express written consent of the other party, Buyer
and Seller agree, except as required by law, not to disclose, advertise or
publicize the contents of this Agreement, except that Buyer and Seller will
coordinate the public announcement of the purchase of the Aircraft hereunder. In
any instance in which a filing or recording of this Agreement, or any part
hereof, is required by law, Seller and Buyer shall request that this Agreement,
or any such part hereof, be afforded confidential treatment. It is expressly
understood and agreed that the parties' obligation under this provision shall
survive performance of the terms of this Agreement, its rescission or other
termination and that this provision shall remain in full force and effect and
shall be deemed severable from and independent of the other provisions of this
Agreement. Notwithstanding the foregoing, to the extent that Seller's
beneficiaries are obligated to disclose the transactions contemplated by this
Agreement to any limited partner of any such beneficiary or to any regulatory
body of competent jurisdiction, Seller shall have no liability hereunder for
making any such disclosure.
15. Headings.
--------
15.01. The headings used herein are for convenience only and shall not be
considered part of any Section for purposes of construing provisions hereof.
16. Termination for Insolvency.
--------------------------
16.01. Either party hereto may, at its option, immediately terminate this
Agreement by giving the other party written notice, as hereinafter provided, at
any time after:
(a) Such other party files a voluntary petition in bankruptcy or a
petition or an answer seeking reorganization, an arrangement with its
creditors or to take advantage of any insolvency or similar laws;
(b) Proceedings in bankruptcy are instituted against such other party
and the same are not dismissed within sixty (60) days;
11
(c) A court takes and retains for a period of at least sixty (60)
days jurisdiction of such other party and its assets pursuant to
proceedings under the provisions of any federal reorganization act;
(d) A receiver of such other party's assets is appointed on account
of insolvency and is not discharged within a period of sixty (60) days
thereafter;
(e) Such other party is otherwise divested of its assets for a period
of at least sixty (60) days by operation of law; or
(f) Such other party makes a general assignment for the benefit of
its creditors or admits in writing its inability to pay its debts as they
mature.
16.02. The effective date of such termination shall be the date such notice
is given.
17. Commissions and Brokers. Fees and Expenses.
-------------------------------------------
17.01. Both parties acknowledge that there are no brokerage commissions to
be paid with respect to the arrangement of the sale and purchase pursuant to
this Agreement, and each party agrees to indemnify and hold the other harmless
from and against any and all claims, suits, damages, costs and expenses
(including, but not limited to, reasonable attorneys' fees) asserted by agents,
brokers or other third parties for any commission or compensation of any nature
whatsoever based upon the sale of the Aircraft, if such claim, damage, cost or
expense arises out of any action or alleged action by the indemnifying party,
its employees or agents.
17.02. Seller and Buyer shall each bear their own expenses, including,
without limitation, fees of legal counsel, accountants or other representatives,
incurred in connection with the transactions contemplated hereby, whether or not
such transactions are consummated.
18. Disclaimer of Consequential Damages.
-----------------------------------
18.01. BUYER AND SELLER EACH HEREBY AGREE THAT IT SHALL NOT BE ENTITLED TO
RECOVER, AND HEREBY DISCLAIMS AND WAIVES ANY RIGHT THAT IT MAY OTHERWISE HAVE TO
RECOVER, CONSEQUENTIAL DAMAGES AS A RESULT OF ANY BREACH OR ALLEGED BREACH BY
THE OTHER PARTY OF ANY OF THE AGREEMENTS, REPRESENTATIONS OR WARRANTIES OF THE
OTHER PARTY CONTAINED IN THIS AGREEMENT.
19. Notices and Requests.
--------------------
19.01. All notices and other communications authorized hereunder shall,
except where specifically provided otherwise, be given in writing to the person
listed below either by
12
personal delivery to said person, or by registered or certified mail, return
receipt requested, or by telegram or telex or telecopier; and the date upon
which any such notice is so personally delivered (or if the notice is given by
registered or certified mail, or by telecopier, the date upon which it is
received by the addressee) shall be deemed to be the date of such notice,
irrespective of the date appearing therein.
Buyer shall be addressed:
Northwest Airlines, Inc.
2700 Lone Oak Parkway (A5000)
Eagan, MN 55121
Attention: Vice President, Northwest Aircraft Inc.
Telefacsimile No.: (612) 726-2488
Seller shall be addressed:
Investors Assets Holding Corp.
c/o Equis Financial Group
98 North Washington Street
Boston, MA 02114
Attention: Vice President, Aircraft Management
Telefacsimile No.: 617-523-1410
Buyer and Seller may each change, from time to time, their named representative
and respective addresses for the purpose of this Section by written notice each
to the other as herein provided.
20. Entire Agreement.
----------------
20.01. This agreement and the Exhibits hereto supersede all previous
discussions, negotiations and communications and constitute the entire Agreement
between the parties hereto with respect to the purchase and sale of the Aircraft
and Data and shall not in any manner be supplemented, amended or modified except
by a written instrument executed on behalf of the parties hereto by their duly
authorized representatives.
21. Governing Law; Severability; Timing.
-----------------------------------
21.01. This Agreement shall in all respects be governed by, and construed
and enforced in accordance with, the laws of the United States of America and
the Commonwealth of Massachusetts, including all matters of construction,
validity and performance. The parties agree that any litigation relating
directly or indirectly to this agreement must be brought before and determined
by a court of competent jurisdiction within the State of Minnesota or
13
the Commonwealth of Massachusetts, and Buyer and Seller hereby agree to waive
any rights to object to the (i) jurisdiction of such courts, and (ii) a jury
trial.
21.02. If any provision of this Agreement shall be determined to be
illegal, invalid or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
21.03. Time is of the essence in the performance of the terms and
conditions set forth in this Agreement.
22. Counterparts.
------------
22.01. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and which together shall constitute one instrument.
23. Facsimile Signatures.
--------------------
23.01. Transmission by telecopier of a facsimile of the signature page
hereof, or any other document to be delivered by one party to the other
pursuant to this Agreement, signed by an authorized representative of a party,
shall be conclusive evidence of the due execution by such party of this
Agreement or such other document. The parties expressly agree to provide
originally executed documents promptly following any facsimile transmission
pursuant to this provision.
24. Insurance.
---------
24.01. Buyer agrees to name Seller as additional insured in a liability
insurance policy as set forth in the Lease for a period of two (2) years from
the date of the sale.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives as of the day and year first above
written.
SELLER:
INVESTORS ASSET HOLDING CORP.,
not in its individual capacity but solely
as Trustee
By: /S/ James F. Livesey
---------------------------
Its: Vice President
--------------------------
BUYER:
NORTHWEST AIRLINES, INC.
By: /s/ Joseph E. Francht, Jr.
---------------------------
Its: Senior Vice President
Finance and Treasurer
--------------------------
The undersigned, being the sole beneficiaries of the "AFG/Northwest Airlines
Trust" and the beneficial owners of the Aircraft hereby authorize and direct the
above named Trustee to execute and deliver this Agreement and, when required as
provided in this Agreement, the documents which have been attached as Exhibits
to this Agreement.
AMERICAN INCOME PARTNERS III-A LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS III-B LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS III-C LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS III-D LIMITED PARTNERSHIP
By: AFG Leasing Incorporated, Managing General Partner
By: /s/ James F. Livesey
---------------------------
Its: Vice President
--------------------------
15
AMERICAN INCOME PARTNERS IV-A LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS IV-B LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS IV-C LIMITED PARTNERSHIP
By: AFG Leasing IV Incorporated, Managing General Partner
By: /s/ James F. Livesey
---------------------------
ITS: Vice President
---------------------------
16
EXHIBIT A
THE AIRCRAFT
------------
Manufacturer Model Registration No. Manufacturer's Serial
------------ ----- ---------------- ---------------------
No.
---
McDonnell Douglas MD-82 N931MC 48057
Engines
Manufacturer Model Serial No.
------------ ----- ----------
Pratt & Whitney JT8D-217 708425
708426
Each of the Engines has 750 or more rated take-off horsepower or the equivalent
of such horsepower.
EXHIBIT B
DATA
----
Any and all Data in the possession of Seller or Northwest Airlines, Inc., its
subsidiaries and affiliates, relating to the Aircraft.
EXHIBIT C
DELIVERY RECEIPT
----------------
ACKNOWLEDGMENT OF
RECEIPT AND ACCEPTANCE OF AIRCRAFT
THE UNDERSIGNED hereby acknowledges that on September 30, 1996, at
12:54 o'clock p.m., (CDT) at Minneapolis, MN, Seller (as defined below)
did deliver to Buyer (as defined below) the following, in accordance with the
provisions of that certain Aircraft Purchase Agreement, dated as of
September 30, 1996, between the undersigned (the "Agreement").
(i) MD-82 jet airframe, FAA Registration No. N931MC and Manufacturer's
Serial No. 48057 equipped as described in the Agreement
(ii) Two (2) Pratt & Whitney JT8D-217 engines installed on the airframe, and
more particularly described as follows:
Engine Manufacturer's
Number Serial Number
---------------------------------------------------
1 708425
2 708426
Each of the engines listed above has 750 or more rated take-off
horsepower or the equivalent of such horsepower.
(iii) All other instruments, accessories and other equipment installed on or
in such Aircraft.
(iv) Data determined by Buyer to be acceptable.
Except as set forth on Schedule I hereto (if any), acknowledges that the
foregoing conforms to the requirements of the Agreement.
BUYER:
NORTHWEST AIRLINES, INC.
By: /s/ Rolf S. Andresen
--------------------------------
Its: Vice President and Controller
-------------------------------
SELLER:
INVESTORS ASSET HOLDING CORP.,
not individually but solely as Trustee, Seller
By: /s/ James F. Livesey
--------------------------------
Its: Vice President
-------------------------------
EXHIBIT D
N931MC LEASE TERMINATION
The undersigned hereby certify and acknowledge that the Conveyances,
each as more fully described on the attached Appendix A, are hereby terminated
with respect to all the collateral covered thereby, and that said collateral are
no longer subject to the terms and provisions thereof.
This Termination may be executed in any number of counterparts, each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
Dated this 30th day of September, 1996.
INVESTORS ASSET HOLDING CORP., NORTHWEST AIRLINES, INC.
as Trustee
By: /s/ James F. Livesey By: /s/ Joseph E. Francht, Jr.
---------------------------- -----------------------------
Title: Vice President Title: Senior Vice President
------------------------- --------------------------
Finance and Treasurer
--------------------------
The undersigned, being the sole beneficiaries of the "AFG/Northwest Airlines
Trust" and the beneficial owners of the Aircraft hereby authorize and direct the
above named Trustee to execute and deliver this Lease Termination.
AMERICAN INCOME PARTNERS III-A LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS III-B LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS III-C LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS III-D LIMITED PARTNERSHIP
By: AFG Leasing Incorporated, Managing General Partner
By: /s/ James F. Livesey
----------------------------
James F. Livesey
Title: Vice President
-------------------------
AMERICAN INCOME PARTNERS IV-A LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS IV-B LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS IV-C LIMITED PARTNERSHIP
By: AFG Leasing IV Incorporated, Managing General Partner
By: /s/ James F. Livesey
----------------------------
James F. Livesey
Title: Vice President
-------------------------
APPENDIX A
TO
N931MC LEASE TERMINATION
Aircraft Lease Agreement dated as of June 1, 1990, between Investors
Asset Holding Corp. as Trustee, lessor (the "Lessor"), and Northwest Airlines,
Inc. as lessee (the "Lessee"), recorded by the Federal Aviation Administration
(the "FAA") on June 13, 1990, as Conveyance No. M23498, as amended by the Lease
Extension Agreement (N931MC) dated as of May 26, 1994, which was not filed with
the FAA, the Letter Agreement dated as of June 27, 1994, which was not filed
with the FAA, and the Third Lease Agreement dated as of July 31, 1994, between
the Lessor and the Lessee, recorded by the FAA on September 2, 1994, as
Conveyance No. HHOO7265.
EXHIBIT E
BILL OF SALE
------------
KNOW ALL MEN BY THESE PRESENTS that:
INVESTORS ASSET HOLDING CORP. not in its individual capacity, but solely as
Trustee, (the "Seller") in consideration of Ten Dollars and other good and
valuable consideration, receipt of which is hereby acknowledged, does hereby
grant, bargain, sell and assign to Northwest Airlines, Inc., a Minnesota
corporation ("Buyer"), its successors and assigns, all of Seller's right, title
and interest in and to the following:
Airframe FAA Registra-
Manufacturer Model tion Number Serial Number
- --------------------------------------------------------------------------------
McDonnell Douglas MD-82 N931MC 48057
Engine
Manufacturer Model Serial Numbers
- --------------------------------------------------------------------------------
Pratt & Whitney JT8D-217 708425
Pratt & Whitney JT8D-217 708426
together with all equipment, components and accessories installed thereon and
used in connection therewith (collectively, the "Aircraft") and the flight,
engineering and maintenance manuals, drawings, documents and airworthiness
certificate and other data pertaining to the Aircraft and the operational and
maintenance records pertaining to the Aircraft (collectively, the "Data")
listed on Exhibit B to that certain Aircraft Purchase Agreement between Buyer
and Seller dated as of September 30, 1996 (the "Aircraft Purchase Agreement").
TO HAVE AND TO HOLD said Aircraft and Data unto Buyer, its successors and
assigns, for its and their own use forever.
Seller hereby warrants that on the date hereof it is the owner of full
and marketable legal title to the Aircraft and Data and Seller has the legal
right to sell the same as aforesaid and that this Bill of Sale conveys to Buyer
good, legal and marketable title to the Aircraft and Data on the date hereof,
free and clear of all leases, mortgages, security interests, claims, charges,
liens and encumbrances of any nature whatsoever, except whose created by or
through Buyer, and Seller shall warrant and defend such title forever against
all claims and demands. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO SUPPLEMENT
OR MODIFY THE REPRESENTATIONS AND WARRANTIES OF SELLER, CONTAINED IN THE
AIRCRAFT PURCHASE AGREEMENT.
IN WITNESS WHEREOF, Seller has caused this instrument to be executed for
the purpose hereinabove shown by its duly authorized representatives on
September 30, 1996.
INVESTORS ASSET HOLDING CORP.
not in its individual capacity but
solely as Trustee, Seller
By: /s/ James F. Livesey
--------------------------
Its: Vice President
-------------------------
The undersigned, being the sole beneficiaries of the "AFG/Northwest Airlines
Trust" and the beneficial owners of the Aircraft hereby authorize and direct the
above named Trustee to execute and deliver this Bill of Sale.
BENEFICIAL OWNER:
AMERICAN INCOME PARTNERS III-A LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS III-B LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS III-C LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS III-D LIMITED PARTNERSHIP
By: AFG Leasing Incorporated, Managing General Partner
By: /s/ James F. Livesey
--------------------------
Its: Vice President
-------------------------
BENEFICIAL OWNER:
AMERICAN INCOME PARTNERS IV-A LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS IV-B LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS IV-C LIMITED PARTNERSHIP
By: AFG Leasing IV Incorporated, Managing General Partner
By: /s/ James F. Livesey
----------------------
Its: Vice President
----------------------
EXHIBIT F
ASSIGNMENT OF WARRANTIES
------------------------
INVESTORS ASSET HOLDING CORP., not in its individual capacity, but solely
as Trustee, (the "Seller") in consideration of the sale of a McDonnell Douglas
Model MD-82 aircraft, Manufacturer's Serial No. 48057, including two (2) Pratt &
Whitney JT8D-217 engines, serial numbers 708425 and 708426 to Northwest
Airlines, Inc., ("Buyer"), its successors, assigns and legal representatives,
does hereby assign, transfer and set over to Buyer any and all warranties of
manufacturers and maintenance and overhaul agencies pertaining to the
above-described Aircraft other than warranties which by their terms are not
assignable.
IN WITNESS WHEROF, this Assignment is hereby executed by Seller on
September 30, 1996.
Seller:
INVESTORS ASSET HOLDING CORP.,
not in its individual capacity, but
solely as Trustee, Seller
By: /s/ James F. Livesey
------------------------
Its: Vice President
------------------------
EXHIBIT G-1
INVESTORS ASSET HOLDING CORP., AS TRUSTEE
Officer's Certificate pursuant to Section 6.01 (e) of the Aircraft Purchase
Agreement between Investors Asset Holding Corp. and Northwest Airlines, Inc.
dated as of September 30, 1996 (the "Agreement").
The undersigned, James F. Livesey, Vice President of Investors Asset
Holding Corp., not in its individual capacity, but solely as Trustee (the
"Seller"), on behalf of Seller, does hereby certify that:
1. The representation and warranties made by the Seller, in the Agreement are
true and correct in all material respects as though such representations
and warranties were made at and as of the date hereof.
2. The Seller has performed and complied in all material respects with all
agreements, covenants, obligations, and conditions applicable to the
Aircraft required by the Agreement to be so performed or complied with
by it prior to or upon delivery of such Aircraft.
All capitalized terms used herein, but not defined herein, shall have those
meanings as are provided in the Agreement.
IN WITNESS WHEREOF, I have signed this Officer's Certificate this 30th day
of September, 1996.
INVESTORS ASSET HOLDING CORP.
not in its individual capacity, but
solely as Trustee, Seller
By: /s/ James F. Livesey
------------------------------
Its: Vice President
-----------------------------
EXHIBIT G-2
NORTHWEST AIRLINES, INC.
Officer's Certificate pursuant to Section 6.02(d) of the Aircraft Purchase
Agreement between Investors Asset Holding Corp., not in its individual capacity,
but solely as Trustee under a Trust Agreement and Northwest Airlines, Inc.,
dated September 30, 1996 (the "Agreement").
The undersigned, Rolf S. Andresen, Vice President and Controller of
Northwest Airlines, Inc., a Minnesota Corporation, (the "Buyer"), on behalf of
Buyer, does hereby certify that:
1. The representations and warranties made by the Buyer, in the Agreement are
true and correct in all material respects as though such representations
and warranties were made at and as of the date hereof.
2. The Buyer has performed and complied in all material respects with all
agreements, covenants, obligations, and conditions applicable to the
Aircraft required by the Agreement to be so performed or complied with by it
prior to or at delivery of such Aircraft.
All capitalized terms used herein, but not defined herein, shall have those
meanings as are provided in the Agreement.
IN WITNESS WHEREOF, I have signed this Officer's Certicate this 30th day of
September, 1996.
NORTHWEST AIRLINES, INC.
By: /s/ Rolf S. Andresen
-------------------------------
Its: Vice President and Controller
------------------------------