EXHIBIT 10(t)
MEMBERSHIP INTEREST PURCHASE AGREEMENT
This Membership Interest Purchase Agreement (this "Agreement"), dated
as of September 13, 2001, is by and Williams Communications, LLC, a Delaware
limited liability company ("Seller"), and Williams Aircraft, Inc., a Delaware
corporation ("Buyer").
RECITALS
Seller is the owner of the entire membership interest of Williams
Communications Aircraft, LLC, a Delaware Limited Liability Company (the
"Company").
Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, the entire membership interest in the Company upon the terms and subject
to the conditions contained herein.
NOW, THEREFORE, in consideration of the premises, agreements and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and in reliance upon
the mutual representations and warranties contained herein, Seller and Buyer
agree, upon the terms and subject to the conditions contained herein, as
follows:
ARTICLE I
PURCHASE AND SALE
1.01 Transfer of Membership Interest. Upon the terms and subject to the
conditions of this Agreement, at the Closing Date (as hereinafter defined),
Seller agrees to sell, assign and deliver to Buyer the entire membership
interest in the Company (the "Interest") together with all of the rights titles
and interests of Seller in or relating in any way to the Company.
1.02 Purchase Price. The consideration (the "Purchase Price") for the
Interest shall be the sum of Thirty-One Million U.S. Dollars (US$31,000,000.00)
and the assumption by Buyer of all of the liabilities and obligations relating
to the Interest. On the Closing Date, pursuant to the terms and conditions of
this Agreement, Buyer agrees to wire transfer the Purchase Price to the Seller
in accordance with Seller's instructions.
1.03 Effective Date. The effective date of the transaction
contemplated by this Agreement shall be the Closing Date (as hereinafter
defined).
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ARTICLE II
CLOSING
2.01 Time and Place of Closing. The closing of the transactions
contemplated hereby (the "Closing") shall be held at the offices of Buyer
located One Williams Center, Tulsa, Oklahoma 74172 , at 1:00 p.m., local time,
on the later to occur of the date which is the first business day following the
day that the conditions specified in Article 5 below shall have been satisfied
in all material respects (or waived by the party or parties entitled to the
benefit thereof), unless another time, date and place is agreed to in writing by
Buyer and Seller. The date upon which Closing occurs shall be referred to herein
as the "Closing Date".
2.02 Deliveries by Seller. (a) Delivery of Documents. At Closing,
Seller shall deliver to Buyer:
(i) One or more certificates evidencing that Buyer is the
owner of the Interest, including without limitation an Assignment of Limited
Liability Membership Interest substantially in the form attached hereto as
Exhibit A; and
(ii) A legal opinion as to the title and lien status to the
Aircraft;
(iii) All waivers, consents, permissions, or other documents
that may be necessary for the transfer of the Interest to Buyer; and
(iv) The duly executed Aircraft Dry Leases for the Aircraft
and Releases of all liens on the Aircraft.
2.03 Deliveries By Buyer. At Closing, Buyer shall deliver the
consideration described in Article 1.02 to Seller together with evidence of
Buyer's power and authority to purchase the Interest.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.01 Existence and Qualification. The Company is a limited liability
company duly formed and validly existing under the laws of Delaware. The Company
has all requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as presently conducted. All of the
minute books, including all minutes, consents and other records of actions taken
by the members and managers (including any committee thereof) of the Company are
held by the Company.
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3.02 Authority, Approval and Enforceability. Seller has all requisite
power and authority to execute and deliver this Agreement and to perform its
obligations under this Agreement. This Agreement has been duly executed and
delivered on behalf of Seller and constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
At the Closing all documents required hereunder to be executed and delivered by
Seller will have been duly authorized, executed and delivered by Seller and will
constitute legal, valid and binding obligations of Seller, enforceable in
accordance with their terms.
3.03 The Interest. The Interest is the sole membership interest in the
Company and is owned beneficially and in the name of Seller, free and clear of
all mortgages, pledges, security interests, liens or encumbrances of any kind
and is not subject to any agreements or understandings among any persons with
respect to the voting or transfer thereof. There are no outstanding
subscriptions, options, convertible securities, warrants, calls or other
securities granting rights to purchase or otherwise acquire interests in the
Company or any commitments or agreements of any character obligating Seller
regarding the foregoing.
3.04 Governmental Authorizations. The Seller has obtained and holds
all governmental permits, licenses, orders and approvals necessary to own the
Interest.
3.05 Assets. The only assets of the Company are the Aircraft as
described in Article 5.01, and the Company has no liabilities, obligations,
commitments or undertakings except as regards the ongoing ownership and
operation of the Aircraft. All filings and certificates necessary for the
Company to own and operate the Aircraft have been filed or obtained.
3.06 Airworthiness. At Closing the Aircraft shall be in an airworthy
condition with all systems functioning within tolerances as stated in the
manufacturer's maintenance criteria. The Aircraft are and shall be at Closing
free and clear of all liens and encumbrances, and the Company will have good and
marketable title thereto. Seller has previously delivered to the Company a
Certificate of Airworthiness issued by the U.S. Federal Aviation Administration
("FAA") certifying that, at the date of issuance, the Aircraft has been
inspected and found to conform in all respects to the applicable FAA Certificate
of Airworthiness.
ARTICLE IV
CONDITIONS TO CLOSING
4.01 Conditions to Obligations of Buyer and Seller. The obligations of
Buyer and Seller to proceed with the Closing are subject to the satisfaction at
or prior to Closing of all of the following conditions.
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(a) Compliance. Buyer and Seller shall have complied in all
material respects with their respective covenants and agreements contained
herein. The representations and warranties contained herein, or in any
certificate or similar instrument required to be delivered by or on behalf of
each of Seller or Buyer pursuant hereto shall be true and correct in all
material respects on and as of the Closing Date, with the same effect as though
made at such time;
(b) No Orders. No order, writ, injunction or decree shall have
been entered and be in effect by any court of competent jurisdiction or any
governmental or regulatory instrumentality or authority, and no statute, rule,
regulation or other requirement shall have been promulgated or enacted and be in
effect, that restrains, enjoins or invalidates the transactions contemplated
hereby;
(c) No Suits. No suit or other proceeding shall be pending or
threatened by any third party before any court or governmental agency seeking to
restrain or prohibit or declare illegal, or seeking substantial damages in
connection with, the transactions contemplated by this Agreement.
ARTICLE V
ASSETS
5.01 Asset. The only assets or property of any kind owned by the
Company are the Aircraft identified on Exhibit "B". All of the above, together
with the existing components, avionics, accessories, equipment attached or
unattached, instrumentation and log books, including without limitation the
specifications and features set forth in Exhibit B hereto, are collectively
referred to herein as the "Aircraft".
ARTICLE VI
POST CLOSING INSPECTION
6.01 Inspection of the Aircraft. On a date that is mutually agreed
between Buyer and Seller, but not later than October 31, 2001, Seller will
present the Aircraft for inspection to Buyer, or Buyers designated
representative. The location of such presentation for inspection shall be the
Buyer's hangar located at Tulsa International Airport, Tulsa, Oklahoma, and the
direct cost of presenting the Aircraft for inspection shall be borne by the
Seller. The cost of the inspection shall be borne by Seller. Upon such
presentation of the Aircraft for inspection by Seller, Buyer shall have the
right for a period of up to seven (7) days to inspect the Aircraft, to conduct a
test flight under the supervision and control of Seller, and to review all
maintenance records, all flight and other records and to otherwise conduct such
physical, technical, engineering and mechanical reviews and tests as would a
normal prudent purchaser of similar aircraft. Within two (2) business days
following the end of such seven (7) day period, Buyer or its representative
shall deliver to Seller a detailed list of any defects (whether physical,
mechanical or otherwise) that Buyer requires to be remedied as a condition of
completing the purchase of the Interest. Seller shall have fifteen (15) days
following
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the receipt of such notice to either (i) remedy defects affecting
airworthiness of the Aircraft to the reasonable satisfaction of Buyer, or (ii)
agree to pay Buyer an amount that the parties agree is the projected cost of
remedying such defects affecting the airworthiness of the Aircraft. In the event
that Seller undertakes to remedy any defects notified by Buyer, Buyer shall have
a reasonable period thereafter to conduct such further tests of the Aircraft to
confirm the completion of any repairs made by Seller as provided above. Defects
not affecting the airworthiness of the Aircraft shall be itemized and, subject
to mutual agreement by the parties, the Seller shall pay Buyer the reasonable
cost of such repairs. Notwithstanding the above, any Defects existing on or
prior to February 26, 2001, shall not be subject to this Section. Buyer and
Seller shall coordinate on any such preexisting defects.
6.02 All flight manuals, maintenance manuals, parts catalogs, wiring
diagrams as well as all other records, paperwork, or minor equipment as is
normally considered to be part of the Aircraft will be given to Buyer at closing
or at a later time consented to in writing by the Buyer.
ARTICLE VI
MISCELLANEOUS
7.01 Notices. Any notice, request, instruction, correspondence or other
communication to be given or made hereunder by either party to the other (herein
collectively called "Notice") shall be in writing and (a) delivered by hand, (b)
mailed by certified mail, postage prepaid and return receipt requested, (c) sent
by telecopier, or (d) sent by Express Mail, Federal Express, or other express
delivery service.
7.02 Governing Law. The provisions of this agreement, the schedules
hereto, and the documents delivered pursuant hereto shall be governed by and
construed in accordance with the laws of the State of Oklahoma (excluding any
conflicts-of-law rule or principle that might refer such matters to the laws of
another jurisdiction), except to the extent that such matters are mandatorily
subject to the laws of another jurisdiction pursuant to the laws of such other
jurisdiction.
7.03 Entire Agreement; Amendments and Waivers. This Agreement, together
with all Schedules hereto, constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties regarding the Interest or the Aircraft. No supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (regardless of whether similar), nor shall any such waiver
constitute a continuing waiver unless otherwise expressly provided.
7.04 Binding Effect and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns. Neither this
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Agreement nor any of the rights, benefits or obligations hereunder shall be
assigned, by operation of law or otherwise, by any party hereto prior to the
Closing without the prior written consent of the other party. Except as
expressly provided herein, nothing in this Agreement is intended to confer upon
any Person other than the parties hereto and their respective permitted
successors and assigns, any rights, benefits or obligations hereunder.
7.05 Severability. If any one or more of the provisions contained in
this Agreement or in any other document delivered pursuant hereto shall, for any
reason, be held to be invalid, illegal or unenforceable in any material respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or any other such document.
7.06 No Implied Warranty on Aircraft. BUYER UNDERSTANDS THAT THE
AIRCRAFT WAS ACQUIRED BY THE COMPANY FROM SELLER ON AN "AS IS" CONDITION. UNLESS
OTHERWISE PROHIBITED BY LAW, BUYER AGREES THAT (i) SELLER MAKES NO WARRANTIES,
EXPRESSED OR IMPLIED WITH RESPECT TO THE AIRCRAFT THAT CONTINUE BEYOND THE
CLOSING, EXCEPT THAT SELLER WARRANTS THAT THE COMPANY HAS GOOD AND MARKETABLE
TITLE TO THE AIRCRAFT AND THE AIRCRAFT WAS ACQUIRED BY THE COMPANY FROM SELLER
WITH A FAA 8050-2 BILL OF SALE, FREE AND CLEAR OF ALL LIENS, (ii) BUYER WAIVES
AS TO SELLER ALL OTHER WARRANTIES RELATING TO THE AIRCRAFT, WHETHER OF
MERCHANTABILITY, FITNESS OR OTHERWISE, (iii) SELLER DISCLAIMS ALL LEGAL
RESPONSIBILITY FOR PRODUCT DEFECTS RELATING TO THE AIRCRAFT THAT MIGHT CAUSE
HARM, (iv) SELLER SHALL NOT BE LIABLE FOR ANY GENERAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF USE,
LOSS OF PROFITS OR DIMINUTION OF MARKET VALUE OF THE AIRCRAFT, AND SELLER SHALL
NOT BE LIABLE FOR ANY DAMAGES CLAIMED BY BUYER OR ANY OTHER PERSON OR ENTITY
UPON THE THEORIES OF NEGLIGENCE OR STRICT LIABILITY IN TORT, (v) IF THE AIRCRAFT
SHOULD FOR ANY REASON PROVE TO BE DEFECTIVE, SELLER AND COMPANY BEAR NO
OBLIGATION FOR SERVICING AND REPAIR OF SUCH DEFECT(S), AND (vi) ALL RISK AS TO
THE QUALITY AND PERFORMANCE OF THE AIRCRAFT IS THAT OF THE COMPANY. Upon
Delivery the Seller shall deliver to the Company an assignment of all
manufacturer's warranties, if any, with respect to the Aircraft that are
assignable (other than those warranties which by their terms are not
assignable). Seller shall also, upon Buyer's request, reasonably execute, or
cause to be executed such further documents as may be necessary to assist the
Company to maintain continuity of the warranties and to assist the Company to
process warranty claims directly with the manufacturers. All costs, if any, to
transfer said manufacturer's warranties shall be at Buyer's expense.
7.07 Headings and Schedules. The headings of the several Articles and
Sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the
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meaning or interpretation of this Agreement. The Schedules referred to herein
are attached hereto and incorporated herein by this reference. Seller may revise
or supplement the Schedules at any time prior to Closing.
7.08 Further Assurances. After the Closing, Seller and Buyer will take
all appropriate action and execute any documents, instruments or conveyances of
any kind that may be reasonably necessary to effectuate the intent of this
Agreement.
7.09 Taxes. Seller hereby agrees to pay, and indemnify and hold
harmless the Buyer from and against, any and all taxes (including interest and
penalties), duties and fees assessed or levied by any federal, state or local
taxing authority as a result of this Agreement or the sale, delivery,
registration or ownership of the Aircraft by the Company. Seller shall not,
however, be liable for any tax imposed with respect to, or measured by, the net
income of the Buyer.
7.10 Confidentiality. The terms and conditions of this offer shall
remain confidential. Seller and Buyer agree to not divulge any terms and/or
conditions contained herein prior to, or subsequent to delivery, with the
exception of filings with federal or state agencies.
7.12 Counterparts and Binding Effect. This Agreement may be executed in
counterparts and each counterpart shall be an original, and all counterparts
together shall be one and the same. This Agreement shall be binding and
enforceable against, and run to the benefit of, the successors and assigns of
the parties hereto.
[Signature page follows]
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EXECUTED as of the date first set forth above.
SELLER:
WILLIAMS COMMUNICATIONS, LLC
By: /s/ Howard S. Kalika
------------------------------------------------
Name: Howard S. Kalika
----------------------------------------------
Title: Treasurer and Vice President
---------------------------------------------
BUYER:
WILLIAMS AIRCRAFT, INC.
By: /s/ Mark W. Husband
------------------------------------------------
Name: Mark W. Husband
----------------------------------------------
Title: Assistant Treasurer
---------------------------------------------
Signature Page to that certain Membership Interest
Purchase Agreement between Williams Communications, LLC
and Williams Aircraft, Inc.
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EXHIBIT A
ASSIGNMENT OF LIMITED LIABILITY COMPANY MEMBERSHIP INTEREST
THIS ASSIGNMENT OF LIMITED LIABILITY COMPANY MEMBERSHIP INTEREST (this
"Assignment"), dated effective as of September 13, 2001, is WILLIAMS
COMMUNICATIONS LLC, a Delaware limited liability company ("Assignor"), WILLIAMS
AIRCRAFT, INC., a Delaware corporation ("Assignee").
Recitals
A. Assignor is the owner of the entire membership interest in Williams
Communications Aircraft, LLC, a Delaware limited liability company (the
"Company").
B. Assignor has agreed to assign to Assignee all of its interest in the
Company and Assignee has agreed to accept such assignment.
Assignment and Assumption
For $10 and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignor and Assignee agree as follows:
1. Assignor hereby transfers, grants, contributes, conveys and assigns to
Assignee all of its ownership rights, titles and interests in and to the
Company, including but not limited to all of Assignor's membership interest in
the Company (collectively, the "Assigned Interests").
2. Assignee hereby assumes all liabilities and obligations accruing with
respect to the Assigned Interests from and after September 13, 2001.
3. Assignor will, upon request from Assignee, execute and deliver any
additional documents necessary to complete the sale, assignment and transfer of
the Assigned Interests tendered hereby. Assignor authorizes the Company to
transfer ownership of the Assigned Interests to Assignee on the books and
records of the Company.
4. This Assignment shall be binding upon, and shall inure to the benefit
of the parties hereto and their successors, heirs and assigns.
5. This Assignment shall be governed by the laws of the State of Oklahoma,
without regard for its conflict of laws rules.
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6. This Assignment may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
document.
EXECUTED to be effective as of the date first set forth above.
ASSIGNOR:
WILLIAMS COMMUNICATIONS, LLC
By: /s/ Howard S. Kalika
------------------------------------------------
Name: Howard S. Kalika
--------------------------------------------
Title: Treasurer and Vice President
--------------------------------------------
ASSIGNEE:
WILLIAMS AIRCRAFT, INC.
By: /s/ Mark W. Husband
------------------------------------------------
Name: Mark W. Husband
----------------------------------------------
Title: Assistant Treasurer
---------------------------------------------
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EXHIBIT B
DESCRIPTION OF AIRCRAFT SPECIFICATIONS
1. CESSNA MODEL 560 CITATION V AIRCRAFT WITH MANUFACTURER'S
SERIAL NUMBER 560-0194 AND UNITED STATES NATIONALITY AND
REGISTRATION MARKS N352WC.
PRATT & WHITNEY MODEL JT15D-5D AIRCRAFT ENGINES WITH
MANUFACTURER'S SERIAL NUMBERS PCE-108400 AND PCE-108397.
SUCH AIRCRAFT TO BE BASED AT TULSA INTERNATIONAL AIRPORT, CITY
OF TULSA, OKLAHOMA, COUNTRY OF U.S.A.
2. CESSNA MODEL 750 CITATION X AIRCRAFT WITH MANUFACTURER'S
SERIAL NUMBER 750-0121 AND UNITED STATES NATIONALITY AND
REGISTRATION MARKS N358WC.
ALLISON MODEL AE3007C AIRCRAFT ENGINES WITH MANUFACTURER'S
SERIAL NUMBERS CAE330260 AND CAE330261.
SUCH AIRCRAFT TO BE BASED AT TULSA INTERNATIONAL AIRPORT, CITY
OF TULSA, OKLAHOMA, COUNTRY OF U.S.A.
3. CESSNA MODEL 560XL CITATION EXCEL AIRCRAFT WITH MANUFACTURER'S
SERIAL NUMBER 560-5129 AND UNITED STATES NATIONALITY AND
REGISTRATION MARKS N359WC.
PRATT & WHITNEY MODEL PW545A AIRCRAFT ENGINES WITH
MANUFACTURER'S SERIAL NUMBERS PCEDB0271 AND PCEDB0265.
SUCH AIRCRAFT TO BE BASED AT SPIRIT OF SAINT LOUIS AIRPORT,
CITY OF CHESTERFIELD, MISSOURI, COUNTRY OF U.S.A.
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