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EXHIBIT 10U
ASSET PURCHASE
AND SALE AGREEMENT
DATED DECEMBER 5, 1995
BETWEEN
ERA AVIATION, INC.
AND
COLUMBIA HELICOPTERS, INC.
2
Assigned
12/5/95
ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (this "Agreement") is entered
into and effective as of December 5, 1995, by and among Columbia Helicopters,
Inc., an Oregon corporation ("Guarantor"), Alaska Helicopters, Inc., an Alaska
corporation, which is a wholly owned subsidiary of Guarantor ("AHI"), and BIJOS
Enterprises a/k/a BIJO Enterprises, an Alaska general partnership ("BIJO"), on
the one hand (AHI and BIJO are collectively referred to as "Sellers"), and Era
Aviation, Inc., a Washington corporation ("Era", "Buyer"), on the other hand.
RECITALS
A. The Sellers desire to sell and Buyer desires to purchase
certain specified Assets described below for the purchase price and on the
terms and conditions set forth herein.
B. AHI desires to sell the AHI Assets described below; and
BIJO desires to sell the BIJO Assets described below. BIJO desires to assume
no obligations with respect to the AHI Assets or any contractual undertakings
taken herein by AHI or Guarantor.
C. In consideration for Guarantor receiving a portion of
the net proceeds of the sale pursuant to an agreement with AHI and BIJO,
Guarantor has agreed to guarantee the performance and payment by AHI of its
obligations under the Agreement.
THEREFORE, in consideration of the mutual benefits and reciprocal
promises, the representations, warranties and conditions set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree:
1. PURCHASE. Sellers will sell and Buyer will purchase the
Assets on and subject to the terms and conditions of this Agreement. AHI will
sell the AHI Assets, and BIJO will sell the BIJO Assets. BIJO assumes no
obligations with respect to the AHI Assets or any contractual undertakings
taken herein by AHI or Guarantor. The closing of this Agreement shall be in
accordance with Section 13 hereof ("Closing").
2. ASSETS. The "Assets" consist of the "AHI Assets" and
the "BIJO Assets", as described in subsections 2(a) through 2(g) below:
a. BIJO Assets include: All estates, rights, titles and
interests in and to real property, leaseholds, rights of way,
rights of ingress and egress, privileges thereto,
improvements, fixtures, furnishings, equipment and other
assets constituting or located on or associated with Lots Five
"B" (5- B) ("Lot 5-B") and Six "B" (6-B) ("Lot 6-B"), Block
Eighteen (18) at the Anchorage International
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Airport according to the unrecorded plat on file with the
State of Alaska, Department of Transportation and Public
Facilities, Division of Airport Leasing, located within the
Anchorage Recording District, Third Judicial District, State
of Alaska (the "Real Property") and further described in
Attachment A hereto.
b. AHI Assets include: The Helicopters and Airplane
("Aircraft") further described in Attachment B hereto.
c. AHI Assets also include: The aircraft parts ("Parts")
described in Attachment C hereto.
d. AHI Assets also include: The vehicles ("Vehicles")
described in Attachment D hereto.
e. AHI Assets also include: The fixtures, furnishings,
equipment and miscellaneous items ("Equipment") described in
Attachment E hereto.
f. AHI Assets also include: The permits, licenses, leases
and contracts ("Permits") described in Attachment F hereto.
g. AHI Assets also include: All other or additional
privileges, rights, interests, properties and assets owned by
AHI on August 18, 1995, and after, and as defined and
described in Attachment G hereto ("Other Assets"), except and
excluding goodwill and the assets listed on Attachment H
hereto ("Excluded Assets"). The Other Assets also include,
without limitation, all manufacturers' and other warranties,
technical records, maintenance records, and Flight Manuals,
brought up to date as of the date of Closing, relating to the
AHI Assets, and all rights, titles and interests of AHI and
Guarantor in and to the BIJO Assets.
3. PURCHASE PRICE. The Purchase Price for the Assets is
$9,971,575. The Purchase Price may be adjusted in accordance with the
"Adjustments" described in Attachment I hereto
4. PAYMENT OF PURCHASE PRICE.
a. The Purchase Price will be payable to Sellers in the
following manner:
1. Cash at Closing: $3,000,000
2. The balance to be payable
as provided in subsection 4(b)
below: $6,971,575
TOTAL PURCHASE PRICE: $9,971,575
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Guarantor, AHI and BIJO will among themselves divide the
proceeds at Closing; and Era shall have no responsibility with
respect to any division of the Purchase Price among Guarantor
or the Sellers at any time.
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b. The balance of the purchase price as provided in
subsection 4(a)(2) above will be evidenced by a Promissory
Note from Era to AHI in the amount of $6,971,575 (the "Note")
in the form of Attachment J hereto, and secured by the
Aircraft under a Security Agreement in the form of Attachment
K hereto (the "Security Agreement") until such time as each
Aircraft is sold or selected in accordance with this
subsection 4(b). The Note shall bear no interest and shall be
payable on or before the first anniversary of the date of
Closing. The parties anticipate that Era will sell all or
some of the Aircraft to third parties or select all or some of
the Aircraft for Era's own use.
1. Upon sale of each Aircraft to a third party, Era
shall pay AHI the Formula Value listed on Attachment B
for that Aircraft, and each such payment shall be
applied as a credit to the balance owing under the Note.
2. Upon selection by Era of any of the Aircraft for its
own use, Era shall pay AHI the Formula Value listed on
Attachment B for that Aircraft, and each such payment
shall be applied as a credit to the balance owing under
the Note. Era shall make every effort to make any such
selections within 60 days of Closing; however, should
Era's business circumstances change, Era shall not be
precluded from selecting any of the Aircraft for its own
use at a later date.
3. Any remaining balance of the Note not sooner paid
shall be due and paid in full on or before the first
anniversary of the date of Closing.
Upon payment for any Aircraft as provided in this subsection
4(b), AHI shall immediately release any security interest of
AHI in such Aircraft. Upon final payment of the balance of
the Note, AHI shall immediately release any remaining security
interests.
5. STATUS OF TITLE.
a. BIJO ASSETS AND REAL PROPERTY LEASEHOLDS. At Closing,
BIJO will execute and deliver to Buyer an Assignment of Lease
Agreement for all of BIJO's leasehold interests in Lot 5-B and
Lot 6-B, in form acceptable to Buyer and the State of Alaska.
Forms of such Assignments are attached as Attachment A-1.
True and correct copies of the Lease Agreements to be assigned
are attached hereto as Attachment A-2. The Assignment of
Lease Agreement for Lot 5-B shall warrant the term of the
leasehold is until August 15, 2011, subject to the terms of
the applicable lease, and the Assignment of Lease Agreement
for Lot 6-B shall warrant the term of the leasehold is until
August 15, 2011, subject to the terms of the applicable lease,
and the Assignments shall convey all of BIJO's right, title
and interest in the leaseholds and warrant the leaseholds free
and clear of all liens and encumbrances, except reservations,
exceptions, restrictions and easements of record, the
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Aviall sublease, and such month to month tiedowns and other
exceptions as may be acceptable to Buyer.
BIJO Assets are sold as is, where is.
BIJO will furnish Buyer with a standard form policy of
title insurance issued by Stewart Title Company of Alaska,
Inc., or some other title insurance company duly qualified to
do business in the State of Alaska acceptable to Buyer. Such
policy shall be issued as of the date of Closing and shall be
in the amount of $2,200,000. Title objections which can be
cured to the satisfaction of Buyer by the mere payment of
money shall be satisfied by BIJO out of BIJO's proceeds of
sale. In the event there are title objections which cannot be
remedied by the mere payment of money, then Buyer shall have
the option to unconditionally revoke this Agreement and
receive full reimbursement by Sellers of all of Buyer's out of
pocket expenses advanced pursuant to the terms of this
Agreement.
b. AIRCRAFT AND PARTS. At Closing AHI will execute and
deliver to Buyer one or more Bills of Sale in form acceptable
to Buyer for the Aircraft and Parts and Certificates of Title
for the Aircraft. The Bills of Sale shall convey marketable
title and all of Sellers' right, title and interest in the
Aircraft and Parts and warrant title to the Aircraft and Parts
free and clear of all liens and encumbrances, except those
evidenced by the Security Agreement. Some of the Helicopters
are currently under contract to third party customers. Such
contracts are described in Attachment F. To the extent
assignable, AHI shall use its best efforts to effect valid
assignments of such contracts to Buyer at Closing.
c. VEHICLES. At Closing AHI will execute and deliver to
Buyer one or more Bills of Sale in form acceptable to Buyer
and Certificates of Title for the Vehicles. The Bills of Sale
shall convey marketable title and all of AHI's right, title
and interest in the Vehicles and warrant title to the Vehicles
free and clear of all liens and encumbrances.
d. BIJO LEASEHOLD IMPROVEMENTS, FIXTURES, FURNISHINGS,
EQUIPMENT AND OTHER ASSETS. At Closing BIJO will execute and
deliver to Buyer one or more Bills of Sale and assignments in
form acceptable to Buyer for the leasehold improvements,
fixtures, furnishings, equipment and other assets described in
Attachment A. The Bills of Sale and assignments shall convey
marketable title and all of BIJO's right, title and interest
in such leasehold improvements, fixtures, furnishings,
equipment and other assets, including without limitation any
manufacturers' warranties related to the BIJO Assets, and
warrant title to such leasehold improvements, fixtures,
furnishings, equipment and other assets free and clear of all
liens and encumbrances. At Closing BIJO shall also execute
and deliver such other transfer documents as are reasonably
necessary or appropriate to accomplish transfer of all the
BIJO Assets that are the subject of this Agreement so as to
vest in Buyer
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good and marketable title free and clear of all liens and
encumbrances. Otherwise, such assets are sold "as is where
is."
e. AHI FIXTURES, FURNISHINGS AND EQUIPMENT. At Closing AHI
will execute and deliver to Buyer one or more Bills of Sale in
form acceptable to Buyer for the fixtures, furnishings and
equipment described in Attachment E. The Bills of Sale shall
convey marketable title and all of AHI's right, title and
interest in such fixtures, furnishings and equipment and
warrant title to such fixtures, furnishings and equipment free
and clear of all liens and encumbrances.
f. PERMITS AND OTHER ASSETS. At Closing AHI will execute
and deliver to Buyer one or more assignments in form
acceptable to Buyer for the Permits and Other Assets,
including without limitation any manufacturers' warranties
related to the AHI Assets, along with such other transfer
documents as are reasonably necessary or appropriate to
accomplish transfer of all the AHI Assets that are the subject
of this Agreement so as to vest in Buyer good and marketable
title free and clear of all liens and encumbrances and AHI
shall so warrant title to such permits and other assets.
6. DELIVERY AND POSSESSION. At Closing Sellers shall
deliver all Assets to Era. Sellers shall vacate the Real Property. AHI shall
deliver all Aircraft to either Anchorage International Airport or at Merrill
Field in Anchorage, at Era's election, except as otherwise expressly provided
in this Agreement. Buyer shall be entitled to possession of all Assets upon
Closing. Buyer will permit AHI reasonable use of 2 offices for up to 30 days
following Closing at no charge.
7. CONDITIONS TO CLOSING. Consummation of the transactions
contemplated by this Agreement is conditioned upon and subject to the
satisfaction of the following conditions, each of which may be waived in
writing by Buyer: (a) State of Alaska unconditional consent and approval of
the Assignments of Lease Agreement between BIJO and Buyer with respect to the
Real Property, in accordance with the current terms and conditions of the
leases; (b) Sellers providing all reasonable assistance and cooperation so that
Buyer may make thorough inspections of all the Assets requested or required by
Buyer; (c) Buyer's satisfaction with results of its inspections of the Assets;
(d) Sellers have delivered to Buyer respective corporate and partnership (i)
resolutions authorizing this Agreement and its obligations, and (ii)
appropriate certificates of incumbency, all satisfactory to Buyer; and (e)
removal of all aircraft including the C-123 from Lot 6-B.
8. INSURANCE AND RISK OF LOSS. Risk of loss or other
damage to the Assets by accident, theft, disappearance, fire, storm, vandalism
or other event between August 18, 1995, and Closing shall be and is assumed by
Sellers, according to their respective interests. In the case of the Real
Property, BIJO shall maintain Commercial Property Insurance to cover all risks
of physical loss or damage on the buildings in a total amount of $2,500,000.00
until Closing. If any such loss or damage occurs prior to Closing Sellers
shall have the option to replace or repair the destroyed or damaged property to
the satisfaction of Buyer prior to Closing. In the absence of such
satisfactory replacement or repair, Buyer shall have the option to (i) accept
Adjustments as set forth in
Asset Purchase and Sale Agreement page 5 of 57
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Attachment I or (ii) unconditionally revoke this Agreement with no further
obligation to Sellers. In the case of the Real Property, BIJO shall not be
required to replace or repair the property; and, in lieu of Adjustments, Buyer
shall have the option to accept BIJO's assignment of the proceeds of BIJO's
insurance, or unconditionally revoke this Agreement as provided in phrase (ii)
immediately above.
Subject always to the provisions of Sections 12 and 14
below, upon Closing all risk of loss of or damage to the Assets shall be
assumed by Buyer. Buyer shall insure the individual Aircraft for hull loss in
the amounts of the respective Insured Values set forth in Attachment B and for
aircraft liability when operated by Era in the amount of $50 million, until the
Formula Value for each Aircraft is paid as provided in subsection 4(b) above.
AHI shall be named as an additional insured as respects the liability policy
and as an additional insured and loss payee as respects the hull policy to the
extent of the Formula Values as its interests may appear. Both policies shall
waive subrogation to the extent of liabilities assumed by Buyer under this
Agreement, as respects AHI, and shall not be materially altered or amended nor
canceled without 30 days prior written notice to AHI.
9. NONCOMPETITION. At Closing Sellers and Guarantor shall
execute and deliver a Covenant Not to Compete in the form of Attachment L.
10. UPDATED INVENTORY. AHI shall provide Buyer an updated
inventory of Parts and Equipment as of November 30, 1995, and a final inventory
as of Closing delivered no later than December 22, 1995, or seven days
following Closing, whichever occurs later. Such inventories shall be certified
as complete and accurate as of their effective dates and times.
11. TERMINATION. Buyer shall have the unconditional right
to revoke this Agreement: (a) If Closing has not occurred for any reason by
December 31, 1995; (b) If any breach by AHI or BIJO of this Agreement has not
been cured by Sellers or expressly waived by Buyer prior to Closing; (c) If
the results of Buyer's inspections of the Assets are not satisfactory to Buyer;
or (d) For the reasons set forth in Section 8 above. In the event this
Agreement is revoked as provided in this Section 11, the parties shall bear
their own respective costs and expenses incurred and shall have no further
liability under this Agreement.
12. INDEMNITY BY SELLERS.
a. The only liabilities assumed by Buyer under this
Agreement are the obligations of the respective Sellers to
perform under the leases, helicopter service contracts,
maintenance agreements and other Permits listed in Attachments
A and F. Except for liabilities and obligations which result
from the condition of the Real Property which exists at the
time of Closing, Buyer does not agree to pay, perform, or
discharge, and shall not be responsible for, and expressly
disclaims any liability for, any other liabilities or
obligations of AHI or BIJO, whether accrued, absolute,
contingent or otherwise, whether known or not known by the
respective Sellers on the date of Closing, which:
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1. result from any event or condition occurring or
existing prior to the date of Closing, or
2. result from liability for defective performance of
any contract or Permit by AHI or BIJO or either's
default under any contract or Permit occurring prior to
Closing, or
3. result from any actual or threatened litigation or
other claims of third parties, including without
limitation governmental entities, whether arising in
contract or tort or claims of violations of law or
permits, relating to the Assets, for occurrences prior
to or existing at the time of Closing, or
4. result from any taxes, similar obligations or
assessments attributable to the Assets or the employees
of AHI or BIJO, or
5. result from either of AHI's or BIJO's directors,
officers, employees, consultants, contractors or
shareholders, or any claims by any of them relating to
or arising out of (i) their employment (including any
modification or termination thereof) by either Seller,
(ii) any employment contract, (iii) any pension or other
benefit or welfare liabilities of either Seller, or (iv)
any severance, transaction bonus, supplemental contracts
or other bonus or incentive compensation plans of either
Seller.
b. Except as expressly otherwise provided for in the first
sentence of subsection 12(a) above, AHI shall defend and
indemnify Buyer and hold Buyer harmless from and against any
and all obligations, claims, demands, damages, deaths,
injuries to person, property or natural resources, losses,
liens, liabilities, penalties, fines, lawsuits, other judicial
or administrative proceedings of any kind, deficiencies, costs
and expenses of any kind and nature (including reasonable
attorneys' fees, consultants' fees, experts' fees and
disbursements) ("Liabilities") which result from conditions
that exist or events that occur, or were associated with AHI's
business operations or the AHI Assets, at or prior to the
Closing, or result from any breach of any of the
representations, warranties, covenants, terms, conditions,
commitments or agreements of AHI contained in this Agreement.
c. At or before Closing, AHI shall cause Buyer to be named
as an additional insured on its aircraft public liability,
hangar keeper's, premises, products and completed operations
insurance covering conditions that exist or events that occur
before Closing and for events or occurrences otherwise related
to AHI's obligations to Buyer under this Agreement, and such
insurance shall be primary to Buyer's insurance, shall waive
subrogation in favor of Buyer, shall be endorsed to provide
contractual liability coverage, and shall warrant Buyer has no
operational interest. As respects those operations which
occurred prior to Closing, AHI shall keep its products and
completed operations policies in force for a period of three
years from the date of final payment on the Note; and except
as set forth in this sentence, AHI shall have no obligation to
maintain any insurance policies beyond the date of Closing.
This
Asset Purchase and Sale Agreement page 7 of 57
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subsection 12(c) shall in no way limit the obligations of AHI
to defend and indemnify Buyer pursuant to this Section 12.
d. AHI shall defend and indemnify Buyer and hold Buyer
harmless from and against any and all obligations, claims,
demands, damages, deaths, injuries to person, property or
natural resources, losses, liens, liabilities, penalties,
fines, lawsuits, other judicial or administrative proceedings
of any kind, deficiencies, costs and expenses of any kind and
nature (including reasonable attorneys' fees, consultants'
fees, experts' fees and disbursements) ("Environmental
Liabilities") which result from any and all use, storage,
disposal, generation, transportation, release, suspected
release, presence or suspected presence of toxic or hazardous
substances or any Material of Environmental Concern (as such
terms are defined by any applicable federal, state or local
governmental law, rule, ordinance or regulation pertaining to
conservation or protection of the environment, environmental
regulation, contamination or cleanup ("Environmental Laws"))
on Lot 5-B of the Real Property on or before the date of
Closing, including without limitation costs associated with
(i) investigation, removal, disposal and remediation of
contamination, and (ii) removal of fuel and lubricant oil
tanks, contaminants and hazardous substances. AHI shall pay
all costs and penalties arising out of or relating to any
remediation or cleanup required as the result of activities or
conditions occurring or existing on or before the date of
Closing. Buyer shall pay all costs and penalties arising out
of or relating to any remediation or cleanup required as the
result of activities occurring after the date of Closing.
Guarantor, Sellers and Buyer shall to the extent reasonably
requested by the other cooperate in any required remediation,
make employees available to meet the environmental regulatory
officials if, when and as requested, and provide reasonable
access to or copies of such documents, records and other data
as any party may reasonably request in connection with any
required remediation or cleanup. Guarantor's and AHI's
obligations under this subsection 12(d) shall be limited to
any required remediation or cleanup commenced within three
years after Closing and in maximum amount to $300,000.
e. Except as expressly otherwise provided for in the first
sentence of subsection 12(a) above, BIJO shall indemnify Buyer
against all Liabilities which result from any material breach
of any of the representations, warranties, covenants, or
commitments of BIJO contained in this Agreement, excluding
however, any claims, demands, and Liabilities, for personal
injury, death and/or property damage which accrue after
Closing and which are attributable to any defects or condition
of any building or asset located upon or erected upon the BIJO
leased premises; and Buyer shall give BIJO reasonable notice
of any such claims for indemnity and an opportunity to
participate in the defense.
f. The only obligation of Sellers to defend and indemnify
the Buyer from environmental liabilities is found in
subsection 12(d) above. Buyer is expressly taking the risk
that the costs of any
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potential environmental liability may exceed the limitations
stated in subsection 12(d).
13. CLOSING, COSTS AND APPORTIONMENTS.
a. LEGAL FEES. Guarantor, Sellers and Buyer shall each
bear their own legal fees.
b. CLOSING. Closing of the purchase and sale shall occur
at a mutually convenient time on or about December 15, 1995,
in Anchorage, Alaska. Buyer may extend the date of Closing
for such period of time as may be required, if State of Alaska
consent and approval of the Assignments of Lease Agreement
have not been obtained as provided herein, however Guarantor
and/or AHI have the unconditional right to terminate this
Agreement if Closing has not occurred by 5pm, December 31,
1995. If this termination is exercised, all parties shall be
responsible for their own legal fees and other expenses with
no further recourse against another party.
c. TITLE INSURANCE POLICY. The premium costs for the
owner's title insurance policy for Buyer's benefit will be
borne by BIJO.
d. TITLE COMPANY CLOSING FEES, RECORDING AND OTHER CLOSING
COSTS. Title company closing fees, registration, recording,
filing and other closing costs will be borne equally between
Buyer and Sellers. Taxes for 1995, current annual Real
Property lease payments to the State of Alaska and sublease
payments from Aviall, and similar other sublease and assigned
agreement payments, will be prorated as of the date of
Closing. There will be no brokerage commissions or finders
fees arising out of this transaction and each party hereto
shall indemnify the other party or parties to the extent any
such commissions or fees are attributable to the indemnifying
party.
14. GUARANTOR AND SELLERS REPRESENTATIONS AND WARRANTIES.
Guarantor and Sellers, as their interests appear, represent and warrant to
Buyer that the following are true and correct on and as of the date of this
Agreement and will be true and correct through the date of Closing as if made
on and as of that date. For purposes of this Section 14, whenever a statement
regarding the existence or absence of facts in this Agreement is qualified by a
phrase such as "to the best of Seller's knowledge" it is intended by the
parties that the only information to be attributed to such person or entity is
information actually known to (a) a partner in the case of BIJO, or (b) in the
case of a corporation an officer or senior management official to include the
Director of Operations and Director of Maintenance, as a result of his
employment, but no such officer or senior management official shall be required
to make inquiries of any other person unless such additional inquiries would be
deemed to be necessary by a reasonable person in the ordinary course of
business:
a. Guarantor and AHI, each, is a corporation duly
organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and is qualified
to do business and is in good standing in the State of Alaska;
BIJO is an Alaska general
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partnership duly organized and validly existing, and is
qualified to do business and in good standing in Alaska. Each
of the Sellers has the power and authority to own, lease and
operate the assets now owned, leased and operated by it. BIJO
has delivered to Buyer complete and correct copies of its
partnership agreement, as amended and in effect on the date of
this Agreement and the date of Closing.
b. Guarantor and each Seller may execute, deliver and
perform this Agreement without the necessity of obtaining any
consent, approval, authorization or waiver or giving any
notice or otherwise, except for the consent and approval of
the State of Alaska to the Assignments of Lease Agreement
expressly described in this Agreement, and except as otherwise
expressly provided herein.
c. Guarantor and each Seller has the power to enter into
this Agreement and carry out its respective obligations
hereunder. This Agreement has been duly authorized, executed
and delivered by Guarantor and each Seller, as its interests
appear, and constitutes the legal, valid and binding
obligations of, and is enforceable against, Guarantor and each
Seller.
d. The execution, delivery and performance of this
Agreement does not and will not constitute a violation of
Guarantor's or either Seller's articles of incorporation, as
amended, or its bylaws, as amended, or its partnership
agreement, as amended, or result in any lien against the
Assets, except as otherwise expressly provided herein;
constitute a violation of any applicable statute, judgment,
order, decree or regulation or rule relating to Guarantor or
either Seller or its respective Assets; or conflict with,
constitute a breach or default under, or give rise to any
right of termination, cancellation or acceleration under, any
term or provision of any material contract, agreement, lease,
mortgage, deed of trust, commitment, license, franchise,
permit, authorization or any other instrument or obligation to
which Guarantor or either Seller is a party or by which its
respective assets are bound; or constitute any event which
with notice, lapse of time, or both, would result in any such
conflict, breach, default or right.
e. Without limiting the foregoing provisions of this
Section 14, the execution, delivery and performance of this
Agreement and consummation of the transactions contemplated
herein, have been duly authorized and approved by the
respective boards of directors and partners.
f. All Assets that are real or tangible personal property
held by each Seller under leases are held under lease
agreements that are valid and binding and in full force and
effect. For each Seller which has a current lease, such
leases are not in default, and no notice of alleged default
has been received by such Seller, and no party thereto is in
default or alleged to be in default thereunder. For each
Seller which has such a lease, none of the rights under any
such lease will be impaired by the consummation of the
transactions contemplated by this Agreement, assuming that the
consent and
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approval of the State of Alaska to the Assignments of Lease
Agreement related to the Real Property is obtained.
g. To the best of the respective Seller's knowledge, there
are no claims, actions, suits or proceedings, or governmental
or administrative investigations pending or threatened against
the respective Seller or any of its Assets.
h. The Permits and Other Assets listed on Attachment F and
Attachment G, constituting a part of the Assets, are valid and
binding and in full force and effect, have not been amended or
supplemented in any manner or respect and upon consummation of
the transactions contemplated by this Agreement will continue
to be valid, in full force and effect and enforceable by Buyer
in accordance with their respective terms. There are no
defaults by AHI thereunder and AHI knows of no defaults
thereunder by any other party thereto, and no event has
occurred that with the lapse of time or action or inaction by
any party thereto would result in a violation thereof or a
default thereunder. None of the rights to the AHI Assets or
under the Permits or Other Assets will be impaired by the
consummation of the transactions contemplated by this
Agreement, and all such rights will inure to and be
enforceable according to their respective terms by Buyer after
the date of Closing without the authorization, consent,
approval, permit or license of, or filing with, any other
person. None of the rights to the AHI Assets or under the
Permits or Other Assets referenced in this subsection 14(h)
have been or are threatened to be revoked, canceled, suspended
or modified.
i. The respective Sellers, to the best of their knowledge,
have delivered to Buyer complete copies of all Permits,
As-Built Drawings and plans and specifications of the
improvements to the Real Property, and other documents and
records related to the Assets.
j. To the best of Guarantor's, BIJO's and AHI's knowledge:
no BIJO Asset is or has been in violation of, or is subject to
a remedial or reporting obligation under, any Environmental
Laws; there are no underground storage tanks, pits, sumps or
impoundments, as defined under any applicable Environmental
Laws, on any of the Real Property, except a 300 gallon
underground storage tank on Lot 5-B; Sellers have received no
notice of any violation or non-compliance with, or remedial
obligation under Environmental Laws (except the removal of a
gasoline storage tank on Lot 5-B, which was done in the summer
of 1992); and there are no outstanding injunctions, decrees,
orders, judgments, lawsuits, claims, proceedings or
investigations pending or threatened under Environmental Laws
relating to the Real Property. However this section as it
relates to BIJO does not put any affirmative duty on BIJO to
perform any environmental audit, inspection or make any
inquiry other than what is presently known by the partners of
BIJO. BIJO has furnished to Buyer copies of documents it has
relating to the environmental conditions on the property, but
BIJO disclaims any expertise in such matters, and does not
warrant that the
Asset Purchase and Sale Agreement page 11 of 57
13
information contained in such copies of documents is true or
accurate.
k. Guarantor and each Seller is not insolvent, nor will
such party be rendered insolvent by the transactions
contemplated by this Agreement.
l. All taxes on the Assets owned by each Seller which have
come due have been paid.
m. The tangible AHI Assets are in good operating condition,
order and repair, subject to ordinary wear and tear, and have
been maintained in accordance with standard industry practice,
and conform in all material respects with all applicable legal
requirements. The Aircraft and Parts are airworthy, except
for such Parts as are indicated otherwise by appropriate
maintenance or other inventory or work in progress records.
The aircraft maintenance records shall be accurate as of
closing.
n. To the best of BIJO's knowledge, improvements to the
Real Property and fixtures did not violate applicable
building, fire or other applicable codes at the time
constructed, modified, installed, repaired or reconstructed.
However this statement as it relates to BIJO does not put any
affirmative duty on BIJO to perform any inspection or make any
inquiry other than what is presently and actually known by the
partners of BIJO. BIJO has furnished to Buyer copies of
documents it has relating to the construction of the building,
but BIJO disclaims any expertise in such matters, and does not
warrant that the information contained in such copies of
documents is true or accurate.
o. There are no assets of the kinds contemplated to be sold
under this Agreement that have not been fully disclosed to
Buyer and that are not in fact being sold under this
Agreement.
p. BIJO has no employees and no employee pension plans; AHI
does not participate in any Multi- employer Pension Plan and
is subject to no employee collective bargaining agreement.
15. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer
represents and warrants to Sellers that the following are true and correct on
and as of the date of this Agreement and will be true and correct through the
date of Closing as if made on and as of that date:
a. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Washington
and is qualified to transact business and is in good standing
in the State of Alaska. Buyer has the corporate power and
authority to own, lease or operate all properties and assets
now owned, leased or operated by it and to carry on its
business as now conducted.
b. Buyer may execute, deliver and perform this Agreement
without the necessity of obtaining any consent, approval,
authorization or waiver or giving any notice or otherwise,
except for
Asset Purchase and Sale Agreement page 12 of 57
14
the consent and approval of the State of Alaska to the
Assignments of Lease Agreement related to the Real Property
expressly contemplated by this Agreement.
c. The execution, delivery and performance of this
Agreement do not and will not constitute a violation of the
articles of incorporation, as amended, or the bylaws, as
amended, of Buyer, or constitute a violation or default under
any contract to which Buyer is a party.
d. The execution, delivery and performance of this
Agreement have been duly authorized by Buyer, and this
Agreement constitutes the legal, valid and binding obligation
of Buyer.
e. Buyer is not, nor will the execution of this Agreement
cause Buyer to become, insolvent.
16. GUARANTOR GUARANTY. Guarantor unconditionally
guarantees each and every obligation of AHI under this Agreement as set forth
in Attachment M.
17. LAWS OF ALASKA, AMBIGUITIES, GOOD FAITH PERFORMANCE.
Every provision of this Agreement shall be construed and enforced in accordance
with the laws of the State of Alaska. The canon of contract interpretation
that ambiguities, if any, in a writing be construed against the drafter shall
not apply to this Agreement. The parties agree to do such things and execute
such further documents and assurances, including without limitation title or
escrow closing instructions, as may be necessary or advisable in order to carry
out the terms and conditions of this Agreement. Whenever the context so
requires, the singular of Sellers includes the plural and the plural of Sellers
includes the singular.
18. ACTIONS, JURISDICTION AND VENUE. If any of Guarantor,
AHI, BIJO or Buyer fails or refuses to comply with the conditions agreed to by
it or to perform any of its respective obligations hereunder, any legal action
or other proceeding for the enforcement of this Agreement or because of an
alleged dispute, breach, default or misrepresentation in connection with this
Agreement or the transactions contemplated hereby, shall be maintained in the
appropriate court located in Anchorage, Alaska. The prevailing party in any
such action or proceeding shall be entitled to recover full reasonable
attorneys fees and costs in addition to any other relief to which it may be
entitled.
19. ASSIGNMENT, MODIFICATION, ENTIRE UNDERSTANDING OF
PARTIES. The rights or obligations of Guarantor or either Seller hereunder
shall not be assigned without the prior written consent of Buyer. Any
purported assignment without such prior written consent shall be void.
This Agreement may be modified with the mutual consent
of all the parties; provided, however, that no such modification shall be valid
or binding unless such modification is in writing, duly dated and signed by
Guarantor, Sellers and Buyer. This Agreement, with its Attachments, which are
incorporated by reference as though set forth in full herein, constitutes the
entire agreement between the parties. No party shall be bound by any other
terms, conditions, statements or representations, oral or written, not herein
contained.
Asset Purchase and Sale Agreement page 13 of 57
15
Each party hereby acknowledges that in executing this Agreement, it has not
been induced, persuaded or motivated by any promise or representation made by
any other party unless expressly set forth herein. All previous negotiations,
statements, and prior offers by the parties or their representatives, including
the document signed the 18th day of August 1995 by Era, AHI and BIJO, are
superseded by and merged into this Agreement.
20. WAIVER. Any waiver of any term or condition of this
Agreement, or any amendment of this Agreement, shall be effective only if in
writing and signed by the waiving party. A waiver of breach or failure to
enforce any of the terms or conditions of this Agreement shall not in any way
affect, limit or waive a party's rights at any other time to enforce strict
compliance thereafter with every term or condition of this Agreement.
21. SURVIVAL. All warranties, covenants, representations
and obligations contained in this Agreement or in any certificate, assignment,
document or other instrument delivered in connection herewith shall survive the
Closing and will not be affected by any investigation, verification, or
approval by any party or anyone on behalf of any party.
22. ACCESS TO RECORDS AND OPERATIONS. Between the date of
this Agreement and Closing: (a) Each Seller shall give Buyer, its agents and
representatives, access to its respective Assets and related records and
furnish such information with respect to Sellers and the Assets as Buyer shall
from time to time reasonably request; (b) AHI and BIJO shall operate only in
the ordinary course of their respective businesses and in compliance with all
applicable laws and regulations; (c) Sellers shall not enter into any
transaction or contract, or amend or terminate any transaction or contract,
substantially affecting the value of any Asset, normal wear and tear excepted;
(d) Each Seller shall cause the tangible Assets owned by it to be maintained
and repaired in accordance with past practices of Sellers, except that Sellers
shall not contract with any third party or parties for repair or service of any
Assets without Buyer's written consent, which consent shall not be unreasonably
withheld; (e) Each Seller shall cause its respective Assets to be operated and
maintained so that the representations and warranties of such Seller contained
herein shall continue to be true and correct on and as of the date of Closing;
(f) Each Seller and Buyer shall advise the others promptly in writing of any
condition or circumstance, known to it, occurring from the date of this
Agreement to and including the date of Closing that would cause the respective
representations and warranties of the respective Seller or Buyer contained
herein or contemplated by this Agreement to become untrue in any material
respect.
23. CONSENTS. Sellers and Buyer shall use their respective
best efforts to obtain the consent and approval of the State of Alaska to the
Assignments of Lease Agreement and any other required consents relating to the
transactions contemplated by this Agreement.
24. SURRENDER. Within 30 days after Closing, AHI shall
surrender its Air Carrier Operating Certificate to the Federal Aviation
Administration.
25. NOTICE. Any notice required or contemplated under this
Agreement shall be in writing and shall be delivered personally or by telex,
facsimile, United States mail (postage prepaid), or express courier or delivery
service, as follows:
Asset Purchase and Sale Agreement page 14 of 57
16
If to BIJO:
P.O. Box 220554
Anchorage, Alaska 99522
Attention: Rex Bishopp
Phone: (907) 243-1097
If to AHI:
Alaska Helicopters, Inc.
P.O. Box 3500
Portland, Oregon 97208
Attention: President
Phone: (503) 678-1222
Facsimile: (503) 678-5841
or physical address:
Aurora State Airport
Aurora, Oregon 97002
If to Guarantor:
Columbia Helicopters, Inc.
P.O. Box 3500
Portland, Oregon 97208
Attention: President
Phone: (503) 678-1222
Facsimile: (503) 678-5841
or physical address:
Aurora State Airport
Aurora, Oregon 97002
If to Buyer:
Era Aviation, Inc.
6160 South Airpark Drive
Anchorage, Alaska 99502
Telephone: (907) 248-4422
Facsimile: (907) 266-8350
Attention: President
or at such other address as the respective party shall have designated by
written notice, as provided in this Section 25, to the other parties. Notices
shall be deemed given when received or upon the date of attempted delivery
where delivery is refused.
26. SIGNATURES. The signatures of Guarantor, AHI, BIJO and
Buyer in the spaces hereinafter provided shall indicate their respective
concurrence and agreement with the terms and conditions set forth in this
Agreement consistent with their respective obligations. By execution of this
Agreement, each of the parties hereto further represents and warrants that all
respective corporate or partnership actions necessary for execution of this
Agreement have been duly and properly taken.
Asset Purchase and Sale Agreement page 15 of 57
17
IN WITNESS WHEREOF, Guarantor, Sellers and Buyer have executed this
Agreement as of the date first set forth above.
GUARANTOR: BUYER:
Columbia Helicopters, Inc., Era Aviation, Inc.,
an Oregon corporation a Washington corporation
By: /s/ MICHAEL A. FAHEY By: /s/ JACK BIRMINGHAM
---------------------------------- -----------------------------
Title: V.P. Finance Jack Birmingham,
--------------------------------- Vice President
Oregon Drivers License #1047337 5/17/97 Airline Employee I.D. Code #01940
By: /s/ RICHARD H. HUMPHREYS
-----------------------------------
Title: Secretary
-------------------------------
Oregon Drivers License #2023573 7/20/98
SELLERS:
Alaska Helicopters, Inc.,
an Alaska corporation
By: /s/ MICHAEL A. FAHEY
-------------------------------------
Title: Treasurer
-------------------------------
Oregon Drivers License #1047337 5/17/97
By: /s/ RICHARD H. HUMPHREYS
-----------------------------------
Title: Secretary
-------------------------------
Oregon Drivers License #2023573 7/20/98
BIJOS Enterprises,
a/k/a BIJO Enterprises,
an Alaska general partnership
By: /s/ REX I. BISHOPP By: /s/ ELLA BLADE BY REX I. BISHOPP
---------------------------------- ---------------------------------
Title: PARTNER Title: Attorney in Fact
------------------------------ ------------------------------
ADL 0260010 6/6/99
By: /s/ RUTH M. BISHOPP By: /s/ CLINTON O. JOHNSON
---------------------------------- ---------------------------------
Title: PARTNER Title: PARTNER
------------------------------ ------------------------------
ADL 0420112 6/9/99 ADL 0662978 4/16/99
By: /s/ LYNN C. JOHNSON By: /s/ THOMAS CRAIG
---------------------------------- ---------------------------------
Title: PARTNER Title: PARTNER
------------------------------ ------------------------------
ADL 0381865 9/37/00 ADL 0305957 5/25/96
By: /s/ GARY BLADE BY REX.I. BISHOPP By: /s/ EILEEN M. CRAIG
--------------------------------- ---------------------------------
Title: Attorney in Fact Title: PARTNER
------------------------------- ------------------------------
ADL 0253620 3/29/99
Asset Purchase and Sale Agreement page 16 of 57
18
BIJOS Enterprises,
a/k/a BIJO Enterprises,
an Alaska general partnership
(Continued)
By: /s/ STEVEN R. SMITH
----------------------------
Title: PARTNER
-------------------------
ADL 0381072 5/22/00
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this 5th day of
December, 1995, by Michael A. Fahey, and Richard H. Humphreys, Jr. who are the
Vice President Finance and Secretary, respectively, of Columbia Helicopters,
Inc., an Oregon corporation, on behalf of the corporation.
/s/ SUSAN M. RUNYON
---------------------------
NOTARY PUBLIC FOR ALASKA
My commission expires: November 21, 1997
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this 5th day of
December, 1995, by Michael A. Fahey, and Richard H. Humphreys, Jr., who are
the Treasurer and Secretary, respectively, of Alaska Helicopters, Inc., an
Alaska corporation, on behalf of the corporation.
/s/ SUSAN M. RUNYON
----------------------------
NOTARY PUBLIC FOR ALASKA
My commission expires: November 21, 1997
Asset Purchase and Sale Agreement page 17 of 57
19
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this 5th day of
December, 1995, by Rex. I. Bishopp, Ruth M. Bishopp, Lyan C. Johnson, Gary
Blade, Ella Blade, Clinton O. Johnson, Thomas Craig, Eileen M. Craig, Steven R.
Smith, partners (or agents) on behalf of BIJOS Enterprises, a/k/a BIJO
Enterprises, an Alaska general partnership.
/s/ SUSAN M. RUNYON
---------------------------
NOTARY PUBLIC FOR ALASKA
My commission expires: November 21, 1997
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this 5th day of
December, 1995, by Jack Birmingham, who is Vice President of Era Aviation,
Inc., a Washington corporation, on behalf of the corporation.
/s/ SUSAN M. RUNYON
---------------------------
NOTARY PUBLIC FOR ALASKA
My commission expires: November 21, 1997
Asset Purchase and Sale Agreement page 18 of 57
20
INDEX OF ATTACHMENTS
A BIJO Assets, Real Property and Other Assets
A-1 Forms of Assignments of Lease Agreements
A-2 Copies of the Airport Lease Agreements
B Aircraft
C Parts
D Vehicles
E Equipment
F Permits
G Other Assets
H Excluded Assets
I Adjustments to Purchase Price
J Note
K Security Agreement
L Covenant Not to Compete
M Guaranty Agreement
Asset Purchase and Sale Agreement page 19 of 57
21
ATTACHMENT A
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 2(A)
BIJO ASSETS, REAL PROPERTY AND OTHER ASSETS
The following constitute BIJO Assets under Section 2 of the Asset Purchase
and Sale Agreement, to which this document is attached: All Real Property,
including appurtenances, as owned or possessed by BIJO on August 18, 1995,
excepting only those items listed on Attachment H, and in the same condition as
on August 18, 1995, normal wear and tear excepted (premature failure or damage
do not constitute normal wear and tear), including without limitation the
following (all dimensions are approximate):
1. Leasehold for Lot 5-B, Lease No. ADA-02970, including 121,589
square feet.
2. Leasehold for Lot 6-B, Lease No. ADA-03722, including 151,441
square feet.
3. Hangar, 100' X 120', built 1980, 12,000 square feet.
4. Office, 24' X 120', two story, built 1980, 4,800 square feet.
5. Office addition, 25' X 80', built 1989, 2,000 square feet.
6. Warehouse addition, 20' X 111', built 1989, 2,200 square feet.
7. Shed, 336 square feet.
8. Generator building, 160 square feet.
9. Five stall garage, 2,400 square feet.
10. Affixed equipment, such as overhead cranes, pumps, and
generator.
11. Overhead fire extinguishing systems and equipment.
12. The Aviall Sublease dated February 15, 1987, as amended by
extensions dated May 10, 1990, January 18, 1995 and May 30, 1995 (currently
expected to terminate December 31, 1995).
13. All maps, as-builts, plans, specifications, blueprints, designs,
and maintenance and service records and manuals relating to the Real Property.
14. All manufacturers' warranties related to BIJO Assets.
Asset and Sale Agreement page 20 of 57
Attachment A
22
BILL OF SALE
BIJO ASSETS, REAL PROPERTY AND OTHER ASSETS
For and in consideration of $10 and Other Valuable Consideration, receipt
and sufficiency of which are hereby acknowledged, the undersigned, BIJOS
Enterprises a/k/a BIJO Enterprises, an Alaska general partnership, owner of
full legal and beneficial title of the Items described as follows:
All BIJO Assets listed in paragraphs 3 through 14, Attachment A,
BIJO Assets, Real Property and Other Assets, to that certain Asset
Purchase and Sale Agreement, made and entered by and among BIJOS
Enterprises and Era Aviation, Inc. and others as of December 5,
1995, a true and correct copy of which Attachment A, BIJO Assets,
Real Property and Other Assets, is attached hereto as Exhibit A
and incorporated by this reference as though set forth in full in
this paragraph;
does sell such Assets as is where is and does this __ day of December, 1995,
hereby sell, grant, transfer and deliver all rights, titles and interests in
and to such Items unto:
Era Aviation, Inc.
6160 South Airpark Drive
Anchorage, Alaska 99502
and to its successors and assigns, to have and to hold singularly the said
Items forever, and warrants the good and marketable titles thereof, free and
clear of all liens and encumbrances, and that it has full right and power to
sell the same and will defend the same against any claims and demands of other
persons.
IN TESTIMONY WHEREOF I have set my hand and seal this __ day of December,
1995.
Seller:
BIJOS Enterprises,
a/k/a BIJO Enterprises,
an Alaska general partnership
By: _____________________________
Rex I. Bishopp,
Managing General Partner
Asset Purchase and Sale Agreement page 21 of 57
Attachment A
23
ATTACHMENT A-1
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 5(A)
ASSIGNMENTS OF AIRPORT LEASE AGREEMENTS
ASSIGNMENT OF LEASE AGREEMENT
ADA-02970
Know all men by these presents that BIJOS Enterprises, a/k/a
BIJO Enterprises, an Alaska general partnership, whose address is P.O. Box
220554, Anchorage, Alaska 99522, hereinafter called the Assignor, in
consideration of One Dollar ($1) and other good and valuable consideration paid
by Era Aviation, Inc., a Washington corporation, hereinafter called the
Assignee, whose address is 6160 South Airpark Drive, Anchorage, Alaska 99502,
does hereby assign, transfer and set over to the Assignee all of the Assignor's
right, title, and interest in and to that certain Lease Agreement dated August
13, 1976, known as Lease Agreement ADA-02970 as amended by Supplement Nos. 1-7,
and the leasehold interests therein described, which covers the following
described real property situated in the Anchorage Recording District, Third
Judicial District, State of Alaska:
Lot Five "B" (5B), Block Eighteen (18), on the Anchorage
International Airport, as shown on the unrecorded plat on file
with the State of Alaska, Department of Transportation and Public
Facilities, Anchorage International Airport, Division of Airport
Leasing;
and, warrants the term of the leasehold is until August 15, 2011, and further
warrants the same free and clear of all liens and encumbrances, except
reservations, exceptions, restrictions and easements of record, and subject to
that certain sublease between Aviall and Assignor.
The effective date of this assignment is December __, 1995.
ASSIGNOR:
BIJOS Enterprises,
a/k/a BIJO Enterprises,
an Alaska general partnership
By: ___________________________________________
Name: _____________________________________
Title: ____________________________________
Asset Purchase and Sale Agreement page 22 of 57
Attachment A-1
24
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this __ day of December, 1995,
before me personally appeared ____________, known to me and known to be the
_______________ of BIJOS Enterprises, a/k/a BIJO Enterprises, an Alaska general
partnership, which executed the foregoing instrument, and he acknowledged to me
that he signed the same for and on behalf of this partnership and that he is
fully authorized to do so.
IN WITNESS WHEREOF, I have set my hand and affixed my official
seal the day and year written above.
__________________________________
NOTARY PUBLIC IN AND FOR ALASKA
My Commission Expires: __________
ACCEPTANCE OF ASSIGNMENT
Era Aviation, Inc., as Assignee, accepts the foregoing
Assignment of Lease Agreement ADA-02970, as amended by Supplement Nos. 1-7, and
the leasehold interests therein described, and agrees to keep and perform all
terms, conditions, covenants and provisions of such Lease Agreement. The
effective date of this acceptance is December __, 1995.
ASSIGNEE:
Era Aviation, Inc.,
a Washington corporation
By: __________________________________________
Charles W. Johnson
President
Asset Purchase and Sale Agreement page 23 of 57
Attachment A-1
25
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
On this __ day of December, 1995, before me personally
appeared Charles W. Johnson, known to me to be the President of Era Aviation,
Inc., a Washington corporation, which executed the foregoing instrument, and he
acknowledged to me that he executed the same for and on behalf of this
corporation, and that he is fully authorized to do so.
IN WITNESS WHEREOF, I have set my hand and affixed my official
seal the day and year written above.
_________________________________
NOTARY PUBLIC IN AND FOR ALASKA
My Commission Expires: _________
CONSENT TO ASSIGNMENT
The State of Alaska, Department of Transportation and Public
Facilities, Anchorage International Airport, Lessor in Lease Agreement
ADA-02970, dated August 13, 1976, as amended by Supplement Nos. 1-7, by and
through its Chief of Leasing, consents to the foregoing Assignment of Lease
Agreement, ADA-02970, effective December __, 1995, assigning all right, title
and interest of the Assignor, Lessee BIJOS Enterprises, a/k/a BIJO Enterprises,
in such Lease Agreement to Assignee, Era Aviation, Inc., whose address is 6160
South Airpark Drive, Anchorage, Alaska 99502, and verifies that the subject
Lease Agreement is in full force and effect and valid and that to the State's
knowledge is not currently in default.
This consent is given subject to and providing that if there
is a conflict between Lease Agreement ADA- 02970, as amended by Supplement Nos.
1-7, and the Assignment or its underlying documents, Lease Agreement ADA-02970,
as amended by Supplement Nos. 1-7, governs, and unless specifically provided
otherwise in this consent, nothing in the Assignment or its
Asset Purchase and Sale Agreement page 24 of 57
Attachment A-1
26
underlying documents will operate to grant the Assignee greater rights or
obligate the Lessor to greater obligations, than the respective rights and
obligations set out in Lease Agreement ADA-02970, as amended by Supplement Nos.
1-7.
The effective date of this consent is December __, 1995.
STATE OF ALASKA,
Department of Transportation and
Public Facilities
By: ___________________________________________
Diane E. Barth, Chief of Leasing,
Anchorage International Airport
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this __ day of December, 1995,
before me, the undersigned, a Notary Public, in and for the State of Alaska,
duly commissioned and sworn, personally appeared Diane E. Barth, Chief of
Leasing, Anchorage International Airport, Department of Transportation and
Public Facilities, and she acknowledged to me that she executed the foregoing
instrument freely and voluntarily on behalf of the State of Alaska, Department
of Transportation and Public Facilities, for the uses and purposes therein set
forth and that she is authorized by said State of Alaska so to do.
IN WITNESS WHEREOF, I have set my hand and affixed my official
seal, the day and year first written above.
____________________________________
NOTARY PUBLIC IN AND FOR ALASKA
My Commission Expires: ____________
Asset Purchase and Sale Agreement page 25 of 57
Attachment A-1
27
ASSIGNMENT OF LEASE AGREEMENT
ADA-03722
Know all men by these presents that BIJOS Enterprises, a/k/a
BIJO Enterprises, an Alaska general partnership, whose address is P.O. Box
220554, Anchorage, Alaska 99522, hereinafter called the Assignor, in
consideration of One Dollar ($1) and other good and valuable consideration paid
by Era Aviation, Inc., a Washington corporation, hereinafter called the
Assignee, whose address is 6160 South Airpark Drive, Anchorage, Alaska 99502,
does hereby assign, transfer and set over to the Assignee all of the Assignor's
right, title, and interest in and to that certain Lease Agreement dated March
19, 1979, known as Lease Agreement ADA-03722 as amended by Supplement Nos. 1-5,
and the leasehold interests therein described, which covers the following
described real property situated in the Anchorage Recording District, Third
Judicial District, State of Alaska:
Lot Six "B" (6B), Block Eighteen (18), on the Anchorage
International Airport, as shown on the unrecorded plat on file
with the State of Alaska, Department of Transportation and Public
Facilities, Anchorage International Airport, Division of Airport
Leasing;
and, warrants the term of the leasehold is until August 15, 2011, and further
warrants the same free and clear of all liens and encumbrances, except
reservations, exceptions, restrictions and easements of record, and subject to
that certain sublease between Aviall and Assignor.
The effective date of this assignment is December __, 1995.
ASSIGNOR:
BIJOS Enterprises,
a/k/a BIJO Enterprises,
an Alaska general partnership
By: ________________________________________
Name: _________________________________
Title: _________________________________
Asset Purchase and Sale Agreement page 26 of 57
Attachment A-1
28
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this __ day of December, 1995,
before me personally appeared ____________, known to me and known to be the
_______________ of BIJOS Enterprises, a/k/a BIJO Enterprises, an Alaska general
partnership, which executed the foregoing instrument, and he acknowledged to me
that he signed the same for and on behalf of this partnership and that he is
fully authorized to do so.
IN WITNESS WHEREOF, I have set my hand and affixed my official
seal the day and year written above.
__________________________________________
NOTARY PUBLIC IN AND FOR ALASKA
My Commission Expires: ____________
ACCEPTANCE OF ASSIGNMENT
Era Aviation, Inc., as Assignee, accepts the foregoing
Assignment of Lease Agreement ADA-03722, as amended by Supplement Nos. 1-5, and
the leasehold interests therein described, and agrees to keep and perform all
terms, conditions, covenants and provisions of such Lease Agreement. The
effective date of this acceptance is December __, 1995.
ASSIGNEE:
Era Aviation, Inc.,
a Washington corporation
By: _____________________________________
Charles W. Johnson
President
Asset Purchase and Sale Agreement page 27 of 57
Attachment A-1
29
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
On this __ day of December, 1995, before me personally
appeared Charles W. Johnson, known to me to be the President of Era Aviation,
Inc., a Washington corporation, which executed the foregoing instrument, and he
acknowledged to me that he executed the same for and on behalf of this
corporation, and that he is fully authorized to do so.
IN WITNESS WHEREOF, I have set my hand and affixed my official
seal the day and year written above.
____________________________________
NOTARY PUBLIC IN AND FOR ALASKA
My Commission Expires: ____________
CONSENT TO ASSIGNMENT
The State of Alaska, Department of Transportation and Public
Facilities, Anchorage International Airport, Lessor in Lease Agreement
ADA-03722, dated March 19, 1979, as amended by Supplement Nos. 1-5, by and
through its Chief of Leasing, consents to the foregoing Assignment of Lease
Agreement, ADA-03722, effective December __, 1995, assigning all right, title
and interest of the Assignor, Lessee BIJOS Enterprises, a/k/a BIJO Enterprises,
in such Lease Agreement to Assignee, Era Aviation, Inc., whose address is 6160
South Airpark Drive, Anchorage, Alaska 99502, and verifies that the subject
Lease Agreement is in full force and effect and valid and that to the State's
knowledge is not currently in default.
This consent is given subject to and providing that if there
is a conflict between Lease Agreement ADA- 03722, as amended by Supplement Nos.
1-5, and the Assignment or its underlying documents, Lease Agreement ADA-03722,
as amended by Supplement Nos. 1-5, governs, and unless specifically provided
otherwise in this consent, nothing in the Assignment or its
Asset Purchase and Sale Agreement page 28 of 57
Attachment A-1
30
underlying documents will operate to grant the Assignee greater rights or
obligate the Lessor to greater obligations, than the respective rights and
obligations set out in Lease Agreement ADA-03722, as amended by Supplement Nos.
1-5.
The effective date of this consent is December __, 1995.
STATE OF ALASKA,
Department of Transportation and
Public Facilities
By: _____________________________________
Diane E. Barth, Chief of Leasing,
Anchorage International Airport
STATE OF ALASKA )
) ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this __ day of December, 1995,
before me, the undersigned, a Notary Public, in and for the State of Alaska,
duly commissioned and sworn, personally appeared Diane E. Barth, Chief of
Leasing, Anchorage International Airport, Department of Transportation and
Public Facilities, and she acknowledged to me that she executed the foregoing
instrument freely and voluntarily on behalf of the State of Alaska, Department
of Transportation and Public Facilities, for the uses and purposes therein set
forth and that she is authorized by said State of Alaska so to do.
IN WITNESS WHEREOF, I have set my hand and affixed my official
seal, the day and year first written above.
____________________________________
NOTARY PUBLIC IN AND FOR ALASKA
My Commission Expires: ____________
Asset Purchase and Sale Agreement page 29 of 57
Attachment A-1
31
ATTACHMENT A-2
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 5(a)
COPIES OF AIRPORT LEASE AGREEMENTS
THE ATTACHED PAGES 30A THROUGH 30BO ARE PRESENTED BY BIJO AS TRUE AND
CORRECT COPIES OF THE AIRPORT LEASE AGREEMENTS COVERING LOT 5-B AND LOT 6-B.
Asset Purchase and Sale Agreement page 30 of 57
Attachment A-2
32
ATTACHMENT B
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 2(b)
AIRCRAFT
The following constitute AHI Assets under Section 2 of the Asset Purchase
and Sale Agreement, to which this document is attached: The Aircraft listed
below, as owned or possessed by AHI on August 18, 1995, and equipped and
configured and in the same condition as on August 18, 1995, normal wear and
tear excepted (premature failure or damage do not constitute normal wear and
tear):
INSURED FORMULA
MAKE MODEL "N" NO. MFG SN YEAR VALUE VALUE
1 Bell 212 N213AH 30554 1973 $ 1,200,000.00 $ 935,258.80
2 Bell 212 N212AH 30853 1977 1,200,000.00 935,258.80
3 Bell 205A1 N58116 30133 1973 965,000.00 752,103.96
4 Bell 205A1 N183AH 30217 1976 1,055,000.00 822,248.37
5 Bell 206BII N265AH 369 1969 225,000.00 175,361.03
6 Bell 206BII N7982J 738 1971 225,000.00 175,361.03
7 Bell 206BIII N371AH 1660 1975 295,000.00 229,917.79
8 Bell 206BIII N577AH 2989 1980 375,000.00 292,268.38
9 Bell 206BIII N401AH 3314 1981 310,000.00 241,608.52
10 Bell 206BIII N2300Y 3576 1982 310,000.00 241,608.52
11 Bell 206BIII N2300Z 3583 1982 310,000.00 241,608.52
12 Bell 206L1 N3928B 45214 1978 595,000.00 463,732.49
13 Bell 206L1 N5013G 45254 1979 595,000.00 463,732.49
14 Bell 206L1 N210AH 45314 1979 595,000.00 463,732.49
15 Bell 206L1 N222AC 45354 1979 595,000.00 463,732.49
SUBTOTAL $ 8,850,000.00 $ 6,897,533.68
16 Cessna 185F N118AH 18503865 1979 $ 95,000.00 $ 74,041.32
-------------- --------------
TOTAL $ 8,945,000.00 $ 6,971,575.00
============== ==============
Factor: 0.779382337
Asset Purchase and Sale Agreement page 31 of 57
Attachment B
33
ATTACHMENT C
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 2(c)
PARTS
The following constitute AHI Assets under Section 2 of the Asset Purchase
and Sale Agreement, to which this document is attached: All engines, parts,
components, accessories, instruments, avionics, airframe components, hardware
and related items, as owned or possessed by AHI on August 18, 1995, and in the
same condition as on August 18, 1995, normal wear and tear excepted (premature
failure or damage do not constitute normal wear and tear), including those
items listed or described in the Inventory List, signed by AHI and Buyer, and
on file at Era Aviation, Inc., 6160 South Airpark Drive, Anchorage, Alaska
99502.
The Inventory List is defined as including the Control Stock Inventory,
computer generated by CHI and dated as of November 30, 1995, and the Era
Inventory, generated by Era personnel and dated as of October 31, 1995,
excluding those parts designated in CHI fax no. 52298 to Era Aviation, Inc.,
dated November 8, 1995. These two documents list Parts, Equipment and
miscellaneous items of varying descriptions. The parties understand and
contemplate that items may move from one list to another from time to time, or
from a list to an Aircraft, to work in process, to stores, and the like; but
that all items should remain in the AHI system and remain accounted for.
Asset Purchase and Sale Agreement page 32 of 57
Attachment C
34
BILL OF SALE
PARTS
For and in consideration of $10 and Other Valuable Consideration,
receipt and sufficiency of which are hereby acknowledged, the undersigned,
Alaska Helicopters, Inc., owner of full legal and beneficial title of the Items
described as follows:
All AHI Assets listed in Attachment C, Parts, to that certain Asset
Purchase and Sale Agreement, made and entered by and among Alaska
Helicopters, Inc. and Era Aviation, Inc. and others as of December
5, 1995, a true and correct copy of which Attachment C, Parts, is
attached hereto as Exhibit A and incorporated by this reference as
though set forth in full in this paragraph;
does this __ day of December, 1995, hereby sell, grant, transfer and deliver
all rights, titles and interests in and to such Items unto:
Era Aviation, Inc.
6160 South Airpark Drive
Anchorage, Alaska 99502
and to its successors and assigns, to have and to hold singularly the said
Items forever, and warrants the good and marketable titles thereof, free and
clear of all liens and encumbrances, and that it has full right and power to
sell the same and will defend the same against any claims and demands of other
persons.
IN TESTIMONY WHEREOF I have set my hand and seal this __ day of
December, 1995.
Seller:
Alaska Helicopters, Inc.,
an Alaska corporation
By:
---------------------------
Roy M. Simmons,
Vice President
Asset Purchase and Sale Agreement page 33 of 57
Attachment C
35
ATTACHMENT D
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 2(d)
VEHICLES
The following constitute AHI Assets under Section 2 of the Asset
Purchase and Sale Agreement, to which this document is attached: The Vehicles
listed below, as owned or possessed by AHI on August 18, 1995, and in the same
condition as on August 18, 1995, normal wear and tear excepted (premature
failure or damage do not constitute normal wear and tear):
ESTIMATED
YEAR MAKE/TYPE VIN OR SERIAL NO. VALUE
1984 Ford Escort 1FABP0941EW116845 $ 500
1983 Chrysler LeBaron 1C3BT46G4DC113096 500
1990 Chevrolet 3/4 T 4WD P/U 1GCFK24HXLE123604 10,000
1989 Ford F250 Snowplow Trk 1FTHF26H5KCA10173 8,500
1988 Ford F250 P/U 1FTHF25H7JPA51113 7,000
1984 Chevrolet Van 2G8EG25D8E4134249 4,000
1978 Ford 3/4T F250 F25HNCE0433 4,000
1993 Ford Aerostar Van 1FMDA41X1PZA28165 10,000
1993 Ford 4X4 Pickup 1FTHX26H1PKB96312 14,000
1993 Ford Van 1FMEE11N3PHC03480 14,000
1958 Int'l 2050-gal Tank Trk 17481 2,500
1955 Ford Fuel Trk (1000-gal) F60Z5R21534 1,000
1981 GMC 2500-g Fuel Truck 1GDT7D4Y0BV590377 7,500
1968 Fruehauf 26' Van Trailer AVJ-771434 500
1979 HM Helicopter Trailer AK16263 500
Clark Electric Forklift EC20C-SG-65806 1,500
Clark Gas Forklift P140642 4,500
Helicopter Dolly NSN 3,500
Terrex Loader Model 72-40 17 UPM 42081 12,500
1964 United Tractor Tug 6964 2,500
--------
TOTAL $109,000
Asset Purchase and Sale Agreement page 34 of 57
Attachment D
36
BILL OF SALE
VEHICLES
For and in consideration of $10 and Other Valuable Consideration,
receipt and sufficiency of which are hereby acknowledged, the undersigned,
Alaska Helicopters, Inc., owner of full legal and beneficial title of the Items
described as follows:
All AHI Assets listed in Attachment D, Vehicles, to that certain
Asset Purchase and Sale Agreement, made and entered by and among
Alaska Helicopters, Inc. and Era Aviation, Inc. and others as of
December 5, 1995, a true and correct copy of which Attachment D,
Vehicles, is attached hereto as Exhibit A and incorporated by
this reference as though set forth in full in this paragraph;
does this __ day of December, 1995, hereby sell, grant, transfer and deliver
all rights, titles and interests in and to such Items unto:
Era Aviation, Inc.
6160 South Airpark Drive
Anchorage, Alaska 99502
and to its successors and assigns, to have and to hold singularly the said
Items forever, and warrants the good and marketable titles thereof, free and
clear of all liens and encumbrances, and that it has full right and power to
sell the same and will defend the same against any claims and demands of other
persons.
IN TESTIMONY WHEREOF I have set my hand and seal this __ day of
December, 1995.
Seller:
Alaska Helicopters, Inc.,
an Alaska corporation
By:
------------------------
Roy M. Simmons,
Vice President
Asset Purchase and Sale Agreement page 35 of 57
Attachment D
37
ATTACHMENT E
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 2(e)
EQUIPMENT
The following constitute AHI Assets under Section 2 of the Asset
Purchase and Sale Agreement, to which this document is attached: All fixtures,
furnishings and equipment, as owned or possessed by AHI on August 18, 1995,
excepting only those items listed on Attachment H, and in the same condition as
on August 18, 1995, normal wear and tear excepted (premature failure or damage
do not constitute normal wear and tear), including those items listed or
described in the Inventory List, signed by AHI and Buyer, and on file at Era
Aviation, Inc., 6160 South Airpark Drive, Anchorage, Alaska 99502.
The Inventory List is defined as including the Control Stock Inventory,
computer generated by CHI and dated as of November 30, 1995, and the Era
Inventory, generated by Era personnel and dated as of October 31, 1995,
excluding those parts designated in CHI fax no. 52298 to Era Aviation, Inc.,
dated November 8, 1995. These two documents list Parts, Equipment and
miscellaneous items of varying descriptions. The parties understand and
contemplate that items may move from one list to another from time to time, or
from a list to an Aircraft, to work in process, to stores, and the like; but
that all items should remain in the AHI system and remain accounted for.
Asset Purchase and Sale Agreement page 36 of 57
Attachment E
38
BILL OF SALE
EQUIPMENT
For and in consideration of $10 and Other Valuable Consideration,
receipt and sufficiency of which are hereby acknowledged, the undersigned,
Alaska Helicopters, Inc., owner of full legal and beneficial title of the Items
described as follows:
All AHI Assets listed in Attachment E, Equipment, to that
certain Asset Purchase and Sale Agreement, made and entered by
and among Alaska Helicopters, Inc. and Era Aviation, Inc. and
others as of December 5, 1995, a true and correct copy of which
Attachment E, Equipment, is attached hereto as Exhibit A and
incorporated by this reference as though set forth in full in
this paragraph;
does this __ day of December, 1995, hereby sell, grant, transfer and deliver
all rights, titles and interests in and to such Items unto:
Era Aviation, Inc.
6160 South Airpark Drive
Anchorage, Alaska 99502
and to its successors and assigns, to have and to hold singularly the said
Items forever, and warrants the good and marketable titles thereof, free and
clear of all liens and encumbrances, and that it has full right and power to
sell the same and will defend the same against any claims and demands of other
persons.
IN TESTIMONY WHEREOF I have set my hand and seal this __ day of
December, 1995.
Seller:
Alaska Helicopters, Inc.,
an Alaska corporation
By:
---------------------------
Roy M. Simmons,
Vice President
Asset Purchase and Sale Agreement page 37 of 57
Attachment E
39
ATTACHMENT F
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 2(f)
PERMITS
The items, contracts, and agreements listed below, as owned or
possessed by AHI on August 18, 1995, and in the same condition as on August 18,
1995, constitute Assets under Section 2 of the Asset Purchase and Sale
Agreement, to which this document is attached. The contracts and agreements to
the extent transferable shall be assigned to Buyer:
1. The continuing OAS helicopter service contracts:
(a) OAS Contract No. 1406-93-81-0679, Items 1, 2, and 3.
(b) OAS Contract No. 1406-95-81-0681, Items 1 and 2.
2. Lynden agreement (month to month, verbal).
3. State of Alaska, Department of Public Safety contract number
CA26947, Aircraft Electrical and Avionics Maintenance.
4. Any Forest Service or other federal or state owned land, landing
permits.
5 EPA Acknowledgment of Notification of Hazardous Waste Activity EPA
ID No. AKR000000034 and State of Alaska, Department of Environmental
Conservation, Underground Petroleum Storage Tank Registration for 1996,
Facility #0-001345.
6. Office machine leases and maintenance agreements:
(a) Alaska Office Systems facsimile maintenance agreement,
RFX-FAX60, SN R8071003439, expires 9/26/96.
(b) Paymaster National Exchange, checkwrite 2 year warranty,
Paymaster System No. 4311A9, 10/10/95 to 10/10/97.
(c) Pitney Bowes postage meter rental agreement, account number
0167-5805-20-2, model 6501, SN 0006807372.
(d) Pitney Bowes scale EMS-5, maintenance agreement, account
number 0167-5805-20-2, 3/1/95 to 2/29/96.
(e) Xerox Corporation maintenance contracts, two MW610
Memorywriters, SN C80-036728 and C80- 036794, 10/1/95 to 9/30/96.
(f) Xerox Corporation maintenance contract, one MW6010
Memorywriter, SN 01C176570, 9/1/95 to 8/30/96.
(g) Xerox Corporation maintenance contract, one MW6010
Memorywriter, SN 01C197610, 6/1/95 to 5/30/96.
(h) Benson Business Systems, Inc. maintenance agreement for 14
pieces of IBM equipment per BBS, Inc. Invoice No. 0030395-IN, 8/15/95 to
8/14/96.
7 All rights to use, and corporate name registrations for the use of,
the names, "Alaska Helicopters", "Alaska Helicopters, Inc.", "Alaska Copters"
and "Helitours Alaska". This action shall be coordinated by Buyer with
Guarantor and
Asset Purchase and Sale Agreement page 38 of 57
Attachment F
40
AHI at a future date not later than 18 months from Closing. Guarantor and AHI
agree that they will not conduct helicopter flight operations during this
period under any of the stated names following Closing.
8. FCC station licenses.
9. The following Supplemental Type Certificates:
(a) SH-5695SW - C30, Engine Installation, purchased from Petroleum
Helicopters for Bell 206L1's.
(b) SH-5132NM, Installation of 212 Main Rotor Head and 212 Blades
on N183AH and N58116, Bell 205's, purchased from Helijet.
(c) SH-1004NE, Installation of dual battery kit on BH205 N58116,
purchased from Dart Aero Accessories.
(d) Any other STC owned by AHI but not documented herein.
10. Any other EPA and OSHA permits and variances.
11. Equipment Lease Agreement bet.een AHI and Tyler Camera Systems
dated October 1, 1991
Asset Purchase and Sale Agreement page 39 of 57
Attachment F
41
ATTACHMENT G
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 2(g)
OTHER ASSETS
The items listed below, as owned or possessed by AHI on August 18,
1995, and in the same condition as on August 18, 1995, updated as contemplated
by the Asset Purchase and Sale Agreement, to which this document is attached,
constitute, without limitation, AHI Assets under Section 2 of the Agreement:
1. All operating and maintenance logs for Aircraft, Parts, Vehicles
and Equipment.
2. All manufacturers' warranties for Aircraft, Parts, Vehicles and
Equipment.
3. All maintenance and service records and manuals for Aircraft,
Parts, Vehicles and Equipment.
4. All patents, copyrights, STC's, trademarks and tradenames used in
the business of AHI or in the occupation or use of the Real Property.
5. All rights, titles and interests of AHI and Guarantor in and to the
BIJO Assets.
6. All phone numbers presently used by AHI in the conduct of their day
to day charter, contract and flightseeing business to be transferred to Buyer
no later than December 31, 1995 (to the extent transferable).
Asset Purchase and Sale Agreement page 40 of 57
Attachment G
42
BILL OF SALE
OTHER ASSETS
For and in consideration of $10 and Other Valuable Consideration,
receipt and sufficiency of which are hereby acknowledged, the undersigned,
Alaska Helicopters, Inc., owner of full legal and beneficial title of the Items
described as follows:
All AHI Assets listed in Attachment G, Other Assets, to that
certain Asset Purchase and Sale Agreement, made and entered by
and among Alaska Helicopters, Inc. and Era Aviation, Inc. and
others as of December 5, 1995, a true and correct copy of which
Attachment G, Other Assets, is attached hereto as Exhibit A and
incorporated by this reference as though set forth in full in
this paragraph;
does this __ day of December, 1995, hereby sell, grant, transfer and deliver
all rights, titles and interests in and to such Items unto:
Era Aviation, Inc.
6160 South Airpark Drive
Anchorage, Alaska 99502
and to its successors and assigns, to have and to hold singularly the said
Items forever, and warrants the good and marketable titles thereof, free and
clear of all liens and encumbrances, and that it has full right and power to
sell the same and will defend the same against any claims and demands of other
persons.
IN TESTIMONY WHEREOF I have set my hand and seal this __ day of
December, 1995.
Seller:
Alaska Helicopters, Inc.
an Alaska corporation
By:
--------------------
Roy M. Simmons,
Vice President
Asset Purchase and Sale Agreement page 41 of 57
Attachment G
43
ATTACHMENT H
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 2(g)
EXCLUDED ASSETS
The following are specifically excluded from the definition of Assets
under Section 2 of the Asset Purchase and Sale Agreement, to which this
document is attached:
1. Mr. Craig's moose.
2. Mr. Bishopp's pictures.
3. One MAI Basic Four Model 2000 computer with seven terminals and two
Printronix printers Model MVP and related peripherals, manuals and accessories.
4. One IBM 486-66 computer with terminal and Laser Jet II printer.
5. Cash and all receivables due AHI through Closing and all prepaid
expenses and deposits, except those which apply to a specific Asset being
transferred.
6. Goodwill.
Asset Purchase and Sale Agreement page 42 of 57
Attachment H
44
ATTACHMENT I
ASSET PURCHASE AND SALE AGREEMENT
SECTIONS 3 AND 8
ADJUSTMENTS TO PURCHASE PRICE
The Parties have agreed that the Purchase Price was established based upon the
actual inventory of Assets as of August 18, 1995. In the event of loss or
damage to the Assets between August 18, 1995, and the date of closing the
Purchase Price shall be adjusted as follows:
AIRCRAFT: In the event of a total loss of an Aircraft, the Purchase Price
shall be reduced by the Insured Value listed on Attachment "B" less 10%. For
repairable damage to an aircraft the Seller shall repair the aircraft to like
condition on August 18, 1995, within 60 days of closing or, in the event of
major damage (estimated repair costs to exceed one half of the insured Value)
at the Buyers option, Seller shall retain ownership of the aircraft and reduce
the Purchase Price by the Insured Value less 10%.
SPARE PARTS AND COMPONENTS: In the event of economically repairable damage to
a Part with a new list price exceeding $1,000.00, the Purchase Price shall be
reduced by the average of the Average Overhaul Cost as estimated in the current
Helicopter Equipment Lists and Prices section of The Official Helicopter Blue
Book. If the part or component is not listed in the Blue Book, the Purchase
Price shall be reduced by an amount equal to 50% of the manufacturer's new list
price for that component.
In the event of total destruction or loss of a Part the Purchase Price shall be
reduced by 65% of the New Price listed in the current Helicopter Equipment Lists
and Prices section of The Official Helicopter Blue Book. If the part or
component is not listed in the Blue Book, the Purchase Price shall be reduced by
amount equal to 65% of the manufacturer's new list price for that component.
VEHICLES AND ROLLING EQUIPMENT: In the event of economically repairable damage
to a Vehicle, the Purchase Price shall be reduced by the repair cost to a like
condition on August 18, 1995, as estimated by a neutral party acceptable to
both Seller and Buyer.
In the event of destruction or loss of a Vehicle the Purchase Price shall be
reduced by the amount shown under Estimated Value on Attachment D. If the
vehicle is not listed therein, the Purchase Price shall be reduced by the
estimated fair market value of that item, assuming serviceable condition, as
determined by a neutral party acceptable to both Seller and Buyer.
FURNITURE, OFFICE MACHINES AND SHOP EQUIPMENT: In the event of loss or damage
to the office furniture and machines, shop equipment, avionics test equipment
and miscellaneous items and the like, the Purchase Price shall be reduced by an
amount equal to replacement of the lost or damaged item by a comparable piece
of used equipment. This value shall be determined by mutual agreement between
the Parties. If an agreement is not reached then the Parties shall select a
neutral third party experienced in such matters who is acceptable to both
Parties to estimate that value.
ALL OTHER ITEMS: For loss of or damage to any other item not described in this
Attachment I, the Purchase Price shall be reduced by an amount equal to the
fair
Asset Purchase and Sale Agreement page 43 of 57
Attachment I
45
market value of a like item in like condition before the loss or damage as
determined by a neutral party, if necessary.
Asset Purchase and Sale Agreement page 44 of 57
Attachment I
46
ATTACHMENT J
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 2(b)
NON-INTEREST BEARING PROMISSORY NOTE
December , 1995 $6,971,575.00
Anchorage, Alaska
FOR VALUE RECEIVED, Era Aviation, Inc. promises to pay to Alaska
Helicopters, Inc., an Alaska corporation with principal offices at Anchorage,
Alaska, the sum of Six Million Nine Hundred Seventy-One Thousand Five Hundred
Seventy-Five and No/100 Dollars ($6,971,575.00), with no interest in any event,
which sum shall be paid in lawful money of the United States of America as
follows: Upon the sale of any Aircraft listed on Attachment B of the Asset
Purchase and Sale Agreement made by and among Era Aviation, Inc., as Buyer, and
Alaska Helicopters, Inc. and BIJO Enterprises, as Sellers, and Columbia
Helicopters, Inc., as Guarantor, dated as of December 5, 1995, (Agreement), to
a third party or selection of any such Aircraft by Era Aviation, Inc. for its
own use, Era Aviation, Inc. shall pay to holder hereof the Formula Value listed
on said Attachment B for that respective Aircraft. Any remaining balance, if
not sooner paid, shall be due and payable in full on or before one year from
the date of this note. All payments shall be paid at P.O. Box 3500, Portland,
Oregon 97208, unless otherwise designated in writing by the holder of this
note.
This note is secured by collateral for the due payment of this note in
accordance with the terms of the security agreement made a part of the
Agreement. Upon the occurrence of an Event of Default (as defined in the
security agreement), the principal sum then remaining unpaid shall forthwith
become due and payable at the election of the holder of this note. Failure to
exercise such election shall not waive the right to exercise it upon any
continuing or subsequent default. If suit is instituted upon this note, the
prevailing party shall be entitled to recover all costs and expenses incurred,
including attorney's fees.
The undersigned hereby waives presentment, dishonor, demand, protest
and notice of demand, protest and nonpayment and expressly agrees that this
note or any payment hereunder may be extended from time to time as mutually
agreed by Era Aviation, Inc. and Alaska Helicopters, Inc. without in any way
affecting the liability of the undersigned.
This Promissory Note is non-assignable and non-transferable except to
Columbia Helicopters, Inc. or a wholly owned subsidiary thereof.
Era Aviation, Inc.,
a Washington corporation
By: ____________________________
Title: _________________________
Asset Purchase and Sale Agreement page 45 of 57
Attachment J
47
GUARANTY
In consideration of the execution of the Agreement by Alaska
Helicopters, Inc. and in consideration of the execution of a Noncompetition
Agreement by Columbia Helicopters, Inc. as a part of the Agreement, Rowan
Companies, Inc., a Delaware corporation, does hereby covenant and agree with
Alaska Helicopters, Inc., its permitted successors and assigns, to guaranty the
full and prompt payment of the note evidencing the indebtedness of Era
Aviation, Inc. to Alaska Helicopters, Inc., in the principal sum of Six Million
Nine Hundred Seventy-One Thousand Five Hundred Seventy-Five and No/100 Dollars
($6,971,575.00), and of any and all renewals thereof, when the same shall
become due and payable, until all of the note, and any and all renewals, are
fully paid and discharged.
This guaranty is an absolute, irrevocable and continuing guaranty of
payment and is not a guaranty of collection and shall not be diminished or
otherwise affected by reason of any failure or delay in enforcing the rights of
Alaska Helicopters, Inc. Rowan Companies, Inc. waives any right to require
Alaska Helicopters, Inc. to (a) proceed against Era Aviation, Inc. or any other
person liable for the note, (b) proceed or enforce its rights against or
exhaust any security given to secure any portion of the Note, (c) have Era
Aviation, Inc. joined with Rowan Companies, Inc. in any suit arising out of
this guaranty, or (d) pursue any other remedy in Alaska Helicopters, Inc.'s
power whatsoever. Alaska Helicopters, Inc. shall not be required to mitigate
damages or take any action to reduce, collect or enforce the note. Rowan
Companies, Inc. waives any defense arising by reason of any disability, lack of
corporate authority or power, or similar defense (excepting any defenses
provided for in the Agreement) of Era Aviation, Inc. or any other guarantor of
any portion of the note, and shall remain liable hereon regardless of whether
Era Aviation, Inc. or any other guarantor be found not liable thereon for any
such reason. Until the note is paid in full, Rowan Companies, Inc. waives any
right to enforce any remedy which Alaska Helicopters, Inc. now has or may
hereafter have against Era Aviation, Inc., and waives any benefit of any right
to participate in any security now or hereafter held by Alaska Helicopters,
Inc.
Rowan Companies, Inc. shall not raise, and hereby specifically waives,
any defense in any action or proceeding by Alaska Helicopters, Inc. seeking
performance of the note, or damages for its non-performance, excepting those
defenses which Era Aviation, Inc. would be able to raise were such action or
proceeding instituted against Era Aviation, Inc. based on the Agreement and its
performance or non-performance of the obligations contained therein.
This Guaranty is non-assignable and non-transferable except to Columbia
Helicopters, Inc., or a wholly owned subsidiary thereof.
Rowan Companies, Inc.,
a Delaware corporation
By: __________________________
Title: _______________________
Asset Purchase and Sale Agreement page 46 of 57
Attachment J
48
ATTACHMENT K
ASSET PURCHASE AND SALE AGREEMENT
SUBSECTION 4(b)
AIRCRAFT SECURITY AGREEMENT
NAME & ADDRESS OF DEBTOR:
Era Aviation, Inc.
6160 South Airpark Drive
Anchorage, Alaska 99502
NAME & ADDRESS OF SECURED PARTY:
Alaska Helicopters, Inc.
P.O. Box 3500
Portland, Oregon 97208
ABOVE SPACE
FOR FAA USE ONLY
Date: December __, 1995
Complete description of collateral being mortgaged:
AIRCRAFT (FAA registration, model, and serial number):
See Attachment A
together with all equipment and accessories attached thereto or used in
connection therewith, including engines of 750 or more horsepower, or the
equivalent, and propellers capable of absorbing 750 or more rated takeoff shaft
horsepower, described above, all of which are included in the term aircraft as
used herein.
The above described aircraft is hereby mortgaged to the secured party for the
purpose of securing in the order named:
FIRST: The payment of all indebtedness evidenced by and according to
the terms of that certain promissory note hereinbelow described, and all
renewals and extensions thereof.
Note bearing date of December __, 1995, executed by the debtor and
payable to Alaska Helicopters, Inc. in the aggregate sum of $6,971,575 with no
interest in any event thereon, payable in accordance with the provisions of
that certain Asset Purchase and Sale Agreement, entered as of December 5, 1995,
by and among debtor and secured party and others, and any remaining balance, if
not sooner paid, payable in full within one year from the date of the note.
SECOND: The prompt and faithful discharge and performance of each
agreement of the debtor herein contained made with or for the benefit of the
secured party in connection with the indebtedness to secure which this
instrument is executed, and the repayment of any sums expended or advanced by
the secured party for the maintenance or preservation of the property mortgaged
hereby or in enforcing his rights hereunder.
Asset Purchase and Sale Agreement page 47 of 57
Attachment K
49
Said debtor hereby declares and hereby warrants to the said secured party, that
he is the absolute owner of the legal and beneficial title to the said aircraft
and in possession thereof, and that the same is free and clear of all liens,
encmbrances, and adverse claims whatsoever except as follows: (If no liens
other than this mortgage indicate "none").
None.
It is the intention of the parties to deliver this instrument in the state of
Alaska.
Provided, however, that if the debtor, its heirs, administrators, successors,
or assigns shall pay said note in accordance with the terms thereof and shall
keep and perform all and singular the terms covenants, and agreements in this
security agreement, then this security agreement shall be null and void, and
the same shall apply with respect to each individual aircraft to be released
from this security agreement in accordance with the applicable provisions of
the said Asset Purchase and Sale Agreement.
Time is of the essence of this security agreement. It is hereby agreed that if
default is made in the payment of any part of the principal of the promissory
note secured hereby at the time and in the manner therein specified, or if any
breach be made of any obligation or promise of the debtor herein contained or
secured hereby, and ten days having elapsed after written notice from secured
party without cure, then the whole principal sum unpaid upon said promissory
note shall immediately become due and payable at the option of the secured
party.
Upon such default and acceleration, secured party may at once proceed to
foreclose this mortgage in any manner provided by law, or he may at his option,
and he is hereby empowered so to do, with or without foreclosure action, enter
upon the premises where the said aircraft may be and take possession thereof;
and remove and sell and dispose of the same at public or private sale and from
the proceeds of such sale retain all costs and charges incurred by it in the
taking or advanced under the terms of this security agreement and interest
thereon, or due or owing to the said secured party, under any provisions of
this security agreement, or secured hereby, with the interest thereon, and any
surplus of such proceeds remaining shall be paid to the debtor, or whoever may
be lawfully entitled to receive the same. If a deficiency occurs, the debtor
agrees to pay such deficiency forthwith.
Asset Purchase and Sale Agreement page 48 of 57
Attachment K
50
Said secured party or its agent may bid and purchase at any sale made under
this mortgage or herein authorized, or at any sale made upon foreclosure of
this mortgage.
In witness whereof, the debtor has hereunto set its hand on the day and year
first above written.
NAME OF DEBTOR: Era Aviation, Inc.
By: _________________
Charles W. Johnson
President
ACCEPTED AND AGREED:
SECURED PARTY: Alaska Helicopters, Inc.
By: _________________
Roy M. Simmons
Vice President
Asset Purchase and Sale Agreement page 49 of 57
Attachment K
51
ATTACHMENT A
TO
AIRCRAFT SECURITY AGREEMENT
- --------------------------------------------------------------------------------
FAA AIRCRAFT AIRCRAFT
REGISTRATION SERIAL MANUFACTURER &
NUMBER NUMBER MODEL YEAR
- --------------------------------------------------------------------------------
1 N213AH 30554 Bell 212 1973
- --------------------------------------------------------------------------------
2 N212AH 30853 Bell 212 1977
- --------------------------------------------------------------------------------
3 N58116 30133 Bell 205A1 1973
- --------------------------------------------------------------------------------
4 N183AH 30217 Bell 205A1 1976
- --------------------------------------------------------------------------------
5 N265AH 369 Bell 206BII 1969
- --------------------------------------------------------------------------------
6 N7982J 738 Bell 206BII 1971
- --------------------------------------------------------------------------------
7 N371AH 1660 Bell 206BIII 1975
- --------------------------------------------------------------------------------
8 N577AH 2989 Bell 206BIII 1980
- --------------------------------------------------------------------------------
9 N401AH 3314 Bell 206BIII 1981
- --------------------------------------------------------------------------------
10 N2300Y 3576 Bell 206BIII 1982
- --------------------------------------------------------------------------------
11 N2300Z 3583 Bell 206BIII 1982
- --------------------------------------------------------------------------------
12 N3928B 45214 Bell 206L1 1978
- --------------------------------------------------------------------------------
13 N5013G 45254 Bell 206L1 1979
- --------------------------------------------------------------------------------
14 N210AH 45314 Bell 206L1 1979
- --------------------------------------------------------------------------------
15 N222AC 45354 Bell 206L1 1979
- --------------------------------------------------------------------------------
16 N118AH 18503865 Cessna 185F 1979
- --------------------------------------------------------------------------------
Asset Purchase and Sale Agreement page 50 of 57
Attachment K
52
RELEASE OF SECURITY AGREEMENT
(PARTIAL)
NAME (LAST NAME FIRST) OF DEBTOR:
NAME and ADDRESS OF SECURED PARTY:
- --------------------------------------------------------------------------------
FAA REGISTRATION AIRCRAFT AIRCRAFT
NUMBER SERIAL NUMBER MANUFACTURER & MODEL
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The aircraft Security Agreement dated ________, covering the collateral
described above, was recorded by the FAA Aircraft Registry on __________, as
Conveyance No. ______.
THE UNDERSIGNED HEREBY CERTIFIES AND ACKNOWLEDGES THAT HE IS THE TRUE
AND LAWFUL HOLDER OF THE NOTE OR OTHER EVIDENCE OF INDEBTEDNESS SECURED BY THE
SECURITY AGREEMENT REFERRED TO ABOVE ON THE COLLATERAL DESCRIBED ABOVE AND THAT
THE SAME COLLATERAL IS HEREBY RELEASED FROM THE TERMS OF THE AGREEMENT. ANY
TITLE RETAINED IN THE COLLATERAL BY THE AGREEMENT IS HEREBY SOLD, GRANTED,
TRANSFERRED, AND ASSIGNED TO THE PARTY WHO EXECUTED THE SECURITY AGREEMENT, OR
TO THE ASSIGNEE OF SAID PARTY IF THE SECURITY AGREEMENT SHALL HAVE BEEN
ASSIGNED; PROVIDED THAT NO EXPRESS WARRANTY IS GIVEN NOR IMPLIED BY REASON OF
EXECUTION OR DELIVERY OF THIS RELEASE.
Date of this Release: _________________
Name of Security Holder: _________________
Signature: _________________
Title: _________________
Asset Purchase and Sale Agreement page 51 of 57
Attachment K
53
ATTACHMENT L
ASSET PURCHASE AND SALE AGREEMENT
SECTION 9
COVENANT NOT TO COMPETE
THIS NONCOMPETITION AGREEMENT is entered into effective ___________,
1995, by and among Columbia Helicopters, Inc., an Oregon corporation (CHI),
Alaska Helicopters, Inc., an Alaska corporation and a wholly owned subsidiary
of CHI (AHI) and BIJOS Enterprises a/k/a/ BIJO Enterprises, an Alaska general
partnership (BIJO) on the one hand (Restricted Parties), and Era Aviation,
Inc., a Washington corporation (Era), on the other hand.
Whereas AHI and BIJO are Sellers of certain specified Assets to Era and
CHI is the guarantor of AHI's obligations pursuant to the terms and conditions
of that certain Asset Purchase and Sale Agreement dated _____________, 1995
(Sale Agreement) and this Noncompetition Agreement is contemplated by Section 9
of said Sale Agreement.
In consideration of the mutual benefits, reciprocal promises, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
For a period of three years from the date of this Noncompetition
Agreement, except as specifically provided herein, CHI and AHI shall not
compete in any manner with Era within the boundaries of the State of Alaska.
CHI is permitted to conduct the following operations within the State of
Alaska: 1) helicopter logging; 2) any other operation using helicopters with a
maximum certified take-off weight of more than 12,500 pounds; 3) the use of
helicopters with a maximum certified take-off weight of 12,500 pounds or less
in support of the operations permitted in 1) and 2).
For a period of three years from the date of this Noncompetition
Agreement, neither BIJO, nor any of its partners, shall operate, maintain,
service, sell or own helicopters of any size, directly or indirectly, through
ownership, management or investment, passive or active, within the State of
Alaska under the name of Alaska Helicopters, Inc., Alaska Helicopters, Alaska
Copters, Helitours Alaska or any name of similar import which contains the
words "Alaska" or "Alaskan."
AHI, CHI and BIJO agree that this Noncompetition Agreement is intended
to protect and preserve legitimate business interests, including, the
proprietary interest of Era as Buyer under the Asset Purchase and Sale
Agreement. It is further agreed that any breach of this Agreement may render
irreparable harm, directly or indirectly, to Era. In the event of a breach by
AHI, CHI and/or BIJO, Era shall have available to it all remedies provided by
law or
Asset Purchase and Sale Agreement page 52 of 57
Attachment L
54
equity, including, but not limited to, injunctive relief to restrain the
breaching party or parties from violating this Noncompetition Agreement.
Any waiver or amendment of this Agreement shall be effective only if in
writing and signed by the waiving party. A waiver of breach or failure to
enforce any of the terms or conditions of this Agreement shall not in any way
affect, limit or waive a party's rights at any other time to enforce strict
compliance thereafter with every term or condition of this Agreement. The
canon of contact interpretation that ambiguities, if any, in a writing be
construed against the drafter shall not apply to this Agreement.
It is the desire, intent and agreement of the parties hereto that the
restrictions placed upon the Restricted Parties by this Noncompetition
Agreement be enforced to the fullest extent permissible under the law and
public policy applied by the courts in the State of Alaska. Accordingly, if,
and to the extent that, any portion of this Noncompetition Agreement shall be
adjudicated by a court of competent jurisdiction to exceed the permissible
scope, such provisions shall be deemed amended to the extent necessary so as to
be enforceable to the maximum permissible scope in light of such determination.
This Noncompetition Agreement shall be subject to and governed by the laws of
the State of Alaska.
Date:________, 1995.
Columbia Helicopters, Inc., Era Aviation, Inc.,
an Oregon corporation a Washington corporation
By: By:
---------------------------------- ------------------------
Title: Title:
------------------------------- ---------------------
Alaska Helicopters, Inc.,
an Alaskan corporation
By:
----------------------------------
Title:
-------------------------------
BIJOS Enterprises,
a/k/a BIJO Enterprises,
an Alaska general partnership
By:
----------------------------------
Title:
------------------------------
Asset Purchase and Sale Agreement page 53 of 57
Attachment L
55
ATTACHMENT M
ASSET PURCHASE AND SALE AGREEMENT
GUARANTY AGREEMENT
This Guaranty Agreement is made by COLUMBIA HELICOPTERS, INC., an
Oregon corporation (hereinafter called the "Guarantor"), in favor of ERA
AVIATION, INC., a Washington corporation (hereinafter called "Buyer").
WHEREAS, on even date herewith, ALASKA HELICOPTERS, INC., an Alaska
corporation and a wholly-owned subsidiary of Guarantor (hereinafter called
"AHI"), BIJO Enterprises, an Alaska general partnership ("BIJO"), and Buyer
entered into that certain Asset Purchase and Sale Agreement (the "Agreement")
pursuant to which Buyer agreed to purchase certain of AHI's and BIJO's assets
on the terms and conditions set forth in the Agreement;
WHEREAS, in consideration for Guarantor receiving a portion of the net
proceeds of the sale pursuant to the Agreement from AHI, Guarantor has agreed
to guarantee the performance and payment by AHI of all of its obligations under
the Agreement; and
WHEREAS, one of the terms and conditions stated in the Agreement for
the consummation of the transactions described therein is the execution and
delivery to Buyer of the Guaranty Agreement;
NOW, THEREFORE, (i) in order to comply with the terms and conditions of
the Agreement, (ii) to induce Buyer to purchase certain of AHI's assets in
accordance with the terms of the Agreement, (iii) at the special insistence and
request of Buyer and (iv) for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby
agrees as follows:
ARTICLE 1
GENERAL TERMS
Section 1.1 TERMS DEFINED ABOVE. As used in this Guaranty
Agreement, the terms "Agreement", "AHI", "Buyer" and "Guarantor" shall have the
meanings indicated above.
Section 1.2 OTHER DEFINITIONS. As used in this Guaranty
Agreement, all other capitalized terms that are not defined herein shall have
the meanings set forth in the Agreement.
ARTICLE 2
THE GUARANTY
Section 2.1 OBLIGATIONS GUARANTEED. In consideration of the
execution of the Agreement by Buyer, Guarantor does hereby fully and
unconditionally guarantee, promise and agree to and with Buyer, its successors
and assigns,
Asset Purchase and Sale Agreement page 54 of 57
Attachment M
56
that AHI, as one of the Sellers named in the Agreement, will faithfully perform
and fulfill every obligation arising out of or pursuant to the Agreement on
AHI's part to be performed or fulfilled, absolute or contingent, secured or
unsecured, direct or indirect, including without limitation all payment
obligations (individually and collectively, the "Obligations"). If AHI fails
to perform the Obligations, then Guarantor shall perform or cause to be
performed all of the Obligations as if they were Guarantor's own obligation by
performing such Obligations directly or by investing with AHI the necessary
resources to fulfill such Obligations or to have AHI make such other
arrangements as may be necessary for fulfillment by others (which may include
Guarantor), or all of the foregoing, subject to Buyer's consent, which consent
shall not be unreasonably withheld.
Section 2.2 NATURE OF GUARANTY. This Guaranty Agreement is an
absolute, irrevocable and continuing guarantee of performance and payment, is
not a guarantee of collection and shall not be diminished or otherwise affected
by reason of any failure or delay in enforcing the rights of Buyer. Any
amendments or extensions made or granted by mutual consent of the parties to
the Agreement shall be conclusively deemed to be consented to by Guarantor.
Guarantor specifically consents to the jurisdiction of the courts and the law
specified in the Agreement.
Section 2.3 GUARANTOR'S WAIVERS. Guarantor hereby expressly
waives presentment for payment, protest, notice of protest, notice of dishonor,
any demand by Buyer and any notice of nonperformance or nonpayment by AHI of
any Obligations. Guarantor waives any right to require Buyer to (a) proceed
against AHI or any other person liable for the Obligations, (b) enforce its
rights against any other guarantor, (c) proceed or enforce its rights against
or exhaust any security given to secure any portion of the Obligations, (d)
have AHI joined with Guarantor in any suit arising out of this Guaranty
Agreement and/or the Obligations, or (e) pursue any other remedy in Buyer's
power whatsoever. Buyer shall not be required to mitigate damages or take any
action to reduce, collect or enforce the Obligations. Guarantor waives any
defense arising by reason of any disability, lack of corporate authority or
power, or similar defense (excepting any defenses provided for in the
Agreement) of AHI or any other guarantor of any portion of the Obligations, and
shall remain liable hereon regardless of whether AHI or any other guarantor be
found not liable thereon for any such reason. Until the Obligations shall have
been performed or paid in full, Guarantor shall have no right of subrogation.
Until the Obligations have been performed or paid in full, Guarantor waives any
right to enforce any remedy which Buyer now has or may hereafter have against
AHI, and waives any benefit of any right to participate in any security now or
hereafter held by Buyer. Guarantor shall not raise, and hereby specifically
waives, any defense in any action or proceeding by Buyer seeking performance of
this Guaranty Agreement, or damages for its nonperformance, excepting those
defenses which AHI would be able to raise were such action or proceeding
instituted against AHI based on the Agreement and its performance or
nonperformance of the Obligations.
Section 2.4 LIABILITY. It is expressly agreed that the
liability of Guarantor for the payment and performance of the Obligations shall
be as if primary and not secondary.
Asset Purchase and Sale Agreement page 55 of 57
Attachment M
57
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 BY GUARANTOR. In order to induce Buyer to accept
this Guaranty Agreement, the Guarantor represents and warrants to Buyer (which
representations and warranties will survive the completion of the Obligations)
that:
(a) BENEFIT TO GUARANTOR. The Guarantor's guarantee pursuant
to this Guaranty Agreement reasonably may be expected to benefit, directly or
indirectly, the Guarantor.
(b) BINDING OBLIGATIONS. ThisGuaranty Agreement constitutes
the valid and binding obligation of the Guarantor, enforceable in accordance
with its terms (except that enforcement with respect to Guarantor may be
subject to any applicable bankruptcy, insolvency or similar laws generally
affecting the enforcement of creditor's rights).
(c) NO LEGAL BAR OR RESULTANT LIEN. This Guaranty Agreement
will not violate any provisions of any contract, agreement, law, regulation,
order, injunction, judgment, decree or writ to which the Guarantor is subject,
or result in the creation or imposition of any lien upon any property of the
Guarantor.
(d) NO CONTEST. The Guarantor's execution, delivery and
performance of this Guaranty Agreement does not require the consent or approval
of any other person or entity, including without limitation any regulatory
authority or governmental body of the United States or any state thereof or any
political subdivision of the United States or any state thereof.
Section 3.2 NO REPRESENTATIONS BY BUYER. Neither Buyer nor
any other person or entity have made any representation, warranty or statement
to the Guarantor in order to induce the Guarantor to execute this Guaranty
Agreement.
Section 3.3 GUARANTOR'S FINANCIAL CONDITION. As of this date
hereof, and after giving effect to this Guaranty Agreement and the contingent
obligations evidenced hereby, the Guarantor is and will be solvent.
Asset Purchase and Sale Agreement page 56 of 57
Attachment M
58
ARTICLE 4
MISCELLANEOUS
Section 4.1 SUCCESSORS AND ASSIGNS. This Guaranty Agreement is and
shall be in every particular available to the successors and assigns of Buyer
and is and shall always be fully binding upon the successors and assigns of the
Guarantor.
Section 4.2 NOTICES. Any notice or demand to the Guarantor under
or in connection with this Guaranty Agreement may be given and shall
conclusively be deemed and considered to have been given and received upon the
deposit thereof, in writing, duly stamped and addressed to the Guarantor at the
address of Guarantor appearing on the last page of this Guaranty Agreement or
at such other address of which the Guarantor shall have notified Buyer in
writing, in the U.S. mail, but actual notice, however given or received, shall
always be effective.
Section 4.3 CONSTRUCTION. THIS GUARANTY AGREEMENT IS A CONTRACT
MADE UNDER AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF ALASKA.
WITNESS THE EXECUTION HEREOF, as of this the ______ day of December,
1995.
COLUMBIA HELICOPTERS, INC.
Address:
P.O. Box 3500 By:
Portland, Oregon 97208
Name:
-------------------
Title:
------------------
By:
Name:
-------------------
Title:
------------------
Asset Purchase and Sale Agreement page 57 of 57
Attachment M