1
Exhibit No. 10(D)
AIRCRAFT PURCHASE AGREEMENT
---------------------------
THIS AIRCRAFT PURCHASE AGREEMENT (this "Agreement") is entered
into as of this 23rd day of April, 1999, by and between Village Transport Corp.,
a Delaware corporation having an office at 6300 Wilson Mills Road, Mayfield
Village, Ohio 44143 ("Seller"), and ACME Acquisition Corporation, an Ohio
corporation having an office at 6300 Wilson Mills Road, Mayfield Village, Ohio
44143 ("Buyer").
1. PURCHASE AND SALE. Upon and subject to the terms and conditions set
forth herein, at Closing (as defined below), Seller shall sell and deliver to
Buyer, and Buyer shall purchase from Seller, the following:
(a) CANADAIR CHALLENGER 601-1A Serial No. 3007, bearing United
States Registration No. N711SX, equipped with two (2) General
Electric CF 34-1A engines, bearing manufacturer's Serial Nos.
350-105 and 350-104, and all related avionics, appliances, parts,
instruments, equipment and accessories, and as described in the
specifications attached hereto as Exhibit A (the "Challenger"); and
(b) all related manuals and catalogs (as set forth in Exhibit A-1),
documents, logbooks and maintenance and other records (the
"Challenger Documents").
2. PAYMENT. In consideration for good and marketable title to the
Challenger and the Challenger Documents as herein provided, at Closing, Buyer
hereby agrees to pay to Seller, and Seller agrees to accept from Buyer, by wire
transfer the aggregate sum of TWELVE MILLION ONE HUNDRED SEVENTEEN THOUSAND TWO
HUNDRED AND FORTY-THREE U.S. Dollars ($12,117,243.00) (the "Purchase Price").
3. CLOSING.
(a) TIME AND PLACE. The closing of the transaction contemplated
herein (the "Closing") shall take place at Wilmington, Delaware, or
at such other location as the parties may mutually agree. The
Closing shall take place on a date ("Closing Date") to be selected
by mutual agreement of the parties, which shall be on or about April
23, 1999, but no later than July 31, 1999, subject to Sections 12
and 16 below, unless a later date is mutually agreed upon by the
parties.
(b) EVENTS AT CLOSING. At Closing, Seller shall sell and convey to
Buyer, against delivery of the Purchase Price, as provided at
Section 2 above, good and marketable title to the Challenger, free
and clear of all liens, encumbrances, claims and rights of third
parties. Possession of the Challenger will be delivered by Seller to
Buyer at the time and place of Closing.
(c) OBLIGATIONS OF SELLER. At Closing, Seller shall deliver, or
cause to be delivered, to Buyer the following:
(i) possession of and title to the Challenger and the Challenger
Documents;
2
(ii) an Aircraft Bill of Sale (FAA AC Form 8050-2), executed in
favor of Buyer, covering the Challenger (the "FAA Bill of Sale")
in substantially the form of Exhibit B hereto;
(iii) a Bill of Sale, in the form of Exhibit C hereto, executed
in favor of Buyer, covering the Challenger;
(iv) all equipment, parts and personal property presently in the
Challenger and other additional equipment, parts and personal
property described in Exhibit D hereto; and
(v) an assignment of all warranties relating to the Challenger
which are then in effect and assignable.
(d) OBLIGATIONS OF BUYER. At Closing, Buyer shall deliver to Seller,
or as otherwise provided herein, the following:
(i) the Purchase Price in the manner described at Section 2
above; and
(ii) an aircraft delivery receipt covering the Challenger in the
form attached hereto as Exhibit E;
4. FAA FILING. The parties hereby agree that duplicate originals of all
documents required to be filed with the United States Federal Aviation
Administration ("FAA"), including AC Form 8050-1 and AC Form 8050-2, in order to
convey the Challenger to Buyer, shall be prepositioned with Aero Records & Title
Co, for filing with the FAA upon Closing and receipt of filing instructions from
the parties hereto.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants to Buyer that, as of the date hereof and as of the Closing Date:
(a) Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
necessary power and authority to conduct its business and to enter
into and perform its obligations under this Agreement and each
document delivered hereunder;
(b) This Agreement, each document delivered hereunder, and all
transactions contemplated hereby and thereby, have been duly
authorized by all necessary action on the part of Seller;
(c) This Agreement and all documents delivered hereunder constitute
the legal, valid and binding obligations of Seller, enforceable in
accordance with their terms;
(d) Record title to the Challenger is held in the name of Seller;
Seller is the beneficial owner of the Challenger, holds valid and
lawful title to the Challenger and has all legal right and authority
necessary to sell and convey the Challenger to Buyer, as herein
provided, and to carry out all of its obligations hereunder;
2
3
(e) At Closing, Seller shall transfer and convey to Buyer title to
the Challenger and, by the deliveries to be made at Closing, Buyer
will have good and marketable title to the Challenger, free and
clear of any and all liens, encumbrances, claims and rights of
others;
(f) At Closing, the Challenger and all associated equipment and
accessories (i) will be current on the Bombardier Aerospace
maintenance program, (ii) will have a current United States
Certificate of Airworthiness issued by the FAA, (iii) will not be
subject to any outstanding mandatory airworthiness directives; and
(iv) will comply with all statutes, laws, rules, and regulations of
governmental or regulatory authorities applicable thereto;
(g) All sales, use, personal property and excise taxes, and all
other taxes, proper charges and assessments, based upon or relating
to the ownership, maintenance, purchase, use or operation of the
Challenger prior to the date hereof, or the Closing Date, as
applicable, have been duly paid and satisfied;
(h) At Closing, the Challenger will conform to the specifications
attached hereto as Exhibit A;
(i) At the Closing Date, the flight logs and maintenance records
relating to the Challenger will be complete and accurate in all
material respects and will be in conformity with all applicable FAA
regulations; and
(j) At Closing, all representations of Seller to Buyer set forth in
Exhibit F will be true, accurate and complete.
EXCEPT AS TO TITLE AND THE MATTERS SET FORTH IN THIS SECTION 5,
THE CHALLENGER WILL BE SOLD AND DELIVERED TO BUYER "AS IS" AND
SELLER MAKES NO OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS
OF ANY KIND WITH RESPECT TO THE CHALLENGER, WHETHER EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. EXCEPT FOR THOSE REPRESENTATIONS,
WARRANTIES AND COVENANTS EXPRESSLY SET FORTH IN THIS AGREEMENT,
BUYER HEREBY WAIVES ALL WARRANTIES, GUARANTEES, OBLIGATIONS,
LIABILITIES, RIGHTS AND REMEDIES AGAINST SELLER. EXCEPT AS TO
TITLE AND THE OBLIGATIONS OF SELLER UNDER SECTIONS 9, 10 AND 11
HEREOF, BUYER HEREBY WAIVES ANY CLAIM AGAINST SELLER FOR LOSS OF
USE, REVENUE OR PROFIT WITH RESPECT TO THE CHALLENGER OR ANY
OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
3
4
6. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby represents and
warrants to Seller that, as of the date hereof and as of the Closing Date:
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Ohio;
(b) Buyer has all necessary power and authority to conduct its
business and to enter into and perform its obligations under this
Agreement and each document delivered hereunder;
(c) This Agreement, each document delivered hereunder, and all
transactions contemplated hereby and thereby, have been duly
authorized on behalf of Buyer by all necessary corporate action; and
(d) This Agreement and each document delivered hereunder constitute
the legal, valid and binding obligations of Buyer, enforceable in
accordance with their terms.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The obligation of
Buyer to purchase the Challenger, and to otherwise consummate the transactions
contemplated by this Agreement, is subject to the following conditions:
(a) Each of the representations and warranties of Seller contained
this Agreement shall be true and correct as of the date hereof and
as of the Closing Date, as if each were again made at such time;
(b) Seller shall have performed and complied with all covenants,
agreements and conditions contained in this Agreement required to be
performed or complied with by it on or prior to the Closing Date;
(c) All proceedings to be taken by Seller shall have been taken; all
consents and governmental approvals to be obtained in connection
with the transactions contemplated by this Agreement shall have been
obtained; and all documents incident thereto shall be reasonably
satisfactory in form and substance to Buyer; and
(d) No action, proceeding or inquiry shall be pending or threatened
by any third party (other than a person claiming by or through
Buyer) or any governmental or regulatory authority to restrain or
prevent the consummation of the transactions contemplated hereby.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligation of
Seller to sell the Challenger to Buyer, and to otherwise consummate the
transactions contemplated by this Agreement, is subject to the following
conditions:
(a) Each of the representations and warranties of Buyer contained in
this Agreement shall be true and correct as of the date hereof and
as of the Closing Date, as if each were again made at such time;
4
5
(b) Buyer shall have performed and complied with all covenants,
agreements and conditions contained in this Agreement required to be
performed or complied with by it on or prior to the Closing Date
(including, without limitation, the payment, deposit or delivery in
full of the Purchase Price);
(c) All proceedings to be taken by Buyer shall have been taken; all
consents and governmental approvals to be obtained in connection
with the transactions contemplated by this Agreement shall have been
obtained; and all documents incident thereto shall be reasonably
satisfactory in form and substance to Seller; and
(d) No action, proceeding or inquiry shall be pending or threatened
by any third party (other than a person claiming by or through
Seller) or any governmental or regulatory authority to restrain or
prevent the consummation of the transactions contemplated hereby.
9. TAXES. The consideration to be paid for the Challenger hereunder
does not include any sales, use, personal property, excise or other similar
taxes or assessments which may be hereafter imposed by any governmental
authority upon the sale transaction or, with respect to periods after Closing,
upon the Challenger or the use by Buyer thereof. Buyer agrees to pay, or to
indemnify Seller against, any and all such taxes or assessments, except for any
taxes on the income or gain resulting from the sale of the Challenger (or at its
sole expense to defend against the imposition of any such taxes). The
consideration to be paid for the Challenger includes, if applicable, all sales,
excise and similar taxes assessed on the sale of materials and equipment to
Seller for incorporation into the Challenger, and any personal property taxes
assessed against the Challenger, or any part thereof, prior to Closing, and
Buyer is not responsible for any additional payment with respect thereto. Seller
shall also pay when due any taxes imposed by any governmental authority on the
income or gain resulting from the sale of the Challenger hereunder.
10. INDEMNIFICATION.
(a) Seller agrees to indemnify, defend and hold harmless Buyer, its
affiliates, and each of their respective officers, agents and
employees, from and against any and all demands, actions,
obligations, damages, liabilities, costs and expenses (including
reasonable attorneys' fees) relating to or arising out of any and
all claims and causes of action which have accrued prior to the
Closing Date (regardless of when asserted) with respect to or
arising out of the ownership, maintenance, condition, operation or
use of the Challenger prior to the Closing Date.
(b) Buyer agrees to indemnify, defend and hold harmless Seller, its
affiliates, and each of their respective officers, agents and
employees, from and against any and all demands, actions,
obligations, damages, liabilities, costs and expenses (including
reasonable attorneys' fees) relating to or arising out of any and
all claims and causes of action which accrue on or after the
Closing Date (regardless of when asserted) with respect to or
arising out of the ownership, maintenance, condition, operation or
use of the Challenger on or after the Closing Date.
5
6
11. CONTRACTUAL INDEMNIFICATION. Each of the parties hereto (the
"Indemnifying Party") covenants and agrees to indemnify, defend and hold
harmless the other party, its affiliates, and each of their respective officers,
agents and employees, from and against any and all claims, demands, actions,
damages, obligations, liabilities, costs and expenses (including reasonable
attorneys' fees) arising out of any breach of any covenant, representation or
warranty made by such Indemnifying Party in this Agreement. The obligations to
indemnify contained in this Agreement shall survive Closing and the consummation
of the transactions contemplated by this Agreement.
12. RISK OF LOSS. Seller shall continue to maintain the Challenger in
accordance with the requirements of this Agreement up to the Closing Date. In
the event that, prior to Closing, the Challenger is destroyed, lost, stolen or
damaged to the extent that "Major Repairs" (defined to mean repairs which cost
in excess of $25,000 in the aggregate) are necessary, Seller and Buyer shall
each have the right to terminate this Agreement by notice to the other, in which
case both parties shall be released from all obligations hereunder. If the
Challenger is damaged to a lesser extent prior to Closing, Seller shall be
obligated to repair same at its own expense, and the Closing shall be extended
for a reasonable period (but in no event longer than 60 days) to permit such
repair.
13. EXPENSES. Regardless of whether the transactions contemplated
hereby shall be consummated, each party hereto shall pay its own expenses
(including attorney's fees) incidental to the negotiation, documentation and
consummation of such transactions. Each of the parties hereby covenants and
agrees to indemnify, defend and save harmless the other against any and all
claims and liabilities which may arise in connection with any third party claim
for brokerage or similar fees arising out of any commitments made by or services
performed for the covenanting party (real or alleged) in connection with the
sale of the Challenger.
14. GOVERNMENTAL APPROVALS. The Closing shall be subject to all
governmental and regulatory approvals required for consummation of the
transaction, including without limitation, the registration of the transfer of
ownership to the Challenger with the FAA or other applicable authority.
15. ASSIGNMENT. Neither party may assign its respective rights or
obligations hereunder without the prior written consent of the other party,
which consent shall not be unreasonably withheld. All representations,
warranties and covenants of each party hereunder shall inure to the benefit of
the other party and its permitted assignees.
16. FORCE MAJEURE. Subject to the terms and conditions set forth
herein, the parties hereto shall use reasonable efforts to consummate the
transactions provided for herein on or before May 31, 1999. In the event that
either Seller or Buyer is unable to perform its obligations hereunder, or to
deliver the required documents, instruments or items of property at Closing, by
reason of any act of God, weather, act of government, strike, shortage of supply
or other cause not reasonably within the control of such party, the date set for
Closing shall be extended until the cause of such inability to perform or
deliver shall have been cured; provided, however, such Closing shall not be
delayed more than thirty-one (31) days. In the event that the Closing is so
delayed, but does not occur on or before July 31, 1999, in accordance with this
Section 16, upon the written demand of either party, the parties shall be
released from their respective obligations
6
7
hereunder and, in such event, neither party will have any further responsibility
or liability to the other.
17. FURTHER ASSURANCES. From time to time after Closing, Seller shall
promptly do, acknowledge, execute and deliver all such further acts, deeds,
bills of sale, transfers, conveyances, certificates of title, registrations of
title and/or other documents and things as Buyer may reasonably request in order
to transfer to and vest and confirm in Buyer the Challenger and to otherwise
fully consummate the transactions provided for herein.
18. NOTICES. All notices and requests in connection with this Agreement
shall be given in writing and shall be given by facsimile, telegram, cable,
telex or teletype, confirmed by certified mail, as follows:
If to Seller: If to Buyer:
Village Transport Corp. Mr. Peter B. Lewis
6300 Wilson Mills Road c/o The Progressive Corporation
Mayfield Village, Ohio 44143 6300 Wilson Mills Road
Attention: David M. Schneider, Secretary Mayfield Village, Ohio 44143
19. MISCELLANEOUS.
(a) This Agreement shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and
permitted assigns.
(b) The headings of the Sections of this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning of such Sections.
(c) This Agreement and the Exhibits hereto constitutes the entire
agreement between the parties with respect to the subject matter
hereof, and supersedes any and all other written or oral
representations, negotiations, agreements or understandings between
the parties.
(d) No representations, warranties, inducements, agreements,
promises or understandings which alter, modify, limit or add to the
terms, provisions or conditions hereof shall have any force or
effect unless the same are recorded in a written instrument duly
executed by the parties to be bound thereby.
(e) This Agreement is not intended to benefit, and shall not confer
any rights or remedies on, any party other than Seller and Buyer
and their permitted assignees, if any.
(f) This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original.
(g) This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
7
8
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized representative, as
of the day and year first above written.
SELLER: BUYER:
Village Transport Corp. ACME Acquisition Corporation
By: /s/ David M. Schneider By: /s/ Peter B. Lewis
----------------------------------- -------------------------------
David M. Schneider, Secretary Peter B. Lewis, President
8
9
EXHIBIT A
SPECIFICATIONS
Serial Number: 3007 Total Time: 5063.1 hrs.
Registration Number: N711SX Total landings: 2938
Date of Manufacture: June 17, 1983
ENGINES
-------
Engine #1 Engine #2
Serial Number: 350105 Serial Number: 350104
Total Time: 5,063.1 hrs. Total Time: 4864.1 hrs.
Total Cycles: 3,165.7 Total Cycles: 2997.1
Time Since Hot Section: 890.4 hrs. Time Since Hot Section: 890.4 hrs.
Cycles Since Hot Section: 500.7 Cycles Since Hot Section: 500.7
(Both engines are due for overhaul at 6000 hrs. total time. The #1 HPT blades
were replaced with the P142 "Serpentine Cooled" blades at the last Hot Section
Inspection on both engines.)
MAINTENANCE
-----------
The 4800 hour and 180 month inspections were performed by Bombardier Aviation
Services Tucson facility on 2/97.
EXTERIOR
--------
Canadair Challenger paint scheme done by Bombardier Aviation Services Tucson
facility on 2/97. Overall Materhorn White, Pratt & Lambert JetGlo 570-535, with
bottom and stripes Gloss Black, Pratt & Lambert JetGlo 571-900.
AVIONICS
--------
AUTOPILOT: Sperry Dual Channel SPZ 600
EFIS: Sperry Dual EFIS 800 (4 tubes)
COMM: Triple Collins VHF-22C
NAV: Dual Collins VIR-32
ADF: Dual Collins ADF-60
DME: Dual Collins DME-42
TRANSPONDER: Dual Honeywell RCZ-852
RADAR: Sperry Primus 800 Color
IRS: Dual Honeywell Laseref
FMS: Dual Universal 1-C with GPS
HF: Dual Collins HF 9000
SELCAL: Motorola NA138-714
FLIGHT PHONE: Wulfsberg FF VI (with Privacy Mod)
ELT: Dorne & Margolin
9
10
CVR: Fairchild A-100A
FDR: Provisions for Fairchild F 800 Digital
ALT: Collins ALT-55B
RMI: Collins BDI-36
TCAS: Honeywell TCAS 2000
EGPWS: Allied Signal with windshear
INTERIOR
--------
Ten passenger executive interior with grey color theme. Six grey leather
berthable chairs with lumbar support. Four passenger fabric devan converts to
berth for one. Most fabrics and carpet new by KC Aviation, Appleton, 1/96.
Forward full service galley with microwave oven, ERDA warming oven, and TIA
Electric coffee brewing/hot water system. Aft private lavatory. Cabin
entertainment system with TV Monitor, Airshow 200, Sony VCR, Sony 10 Disc CD
player, Sony Cassette player, Upgraded speakers and individual headphone station
at each seat.
ADDITIONAL FEATURES
-------------------
RVSM RNP-5/RNP-10 Approved
Increased Take-off Weight Mod
Powered Fuel Crossfeed Mod
Spoiler Auto Depoloy Mod
Innotech 2000 Soundproofing
Nose Gear Door Inadvertant Closure Mod
Large KC Aviation Jumpseat (Certified for take-off & landing)
Remote Single Point Refueling Panel
Remote Skydrol Replenishing System
Bleed Air Pressurized Water System
Aft Fuselage Storage Compartment
8.33 Khz frequency spacing modification to all three VHF Comms
New Collins Pro-Line CTL Control Heads
Aft Fuselage Mounted Tronair Towbar and Head
10
11
EXHIBIT A-1
CHALLENGER DOCUMENTS
1. Aircraft logbook.
2. Engine logbooks.
3. APU logbook.
4. Airframe maintenance manual.
5. Engine maintenance manual.
6. All other maintenance manuals.
11
12
EXHIBIT B
FAA BILL OF SALE
12
13
EXHIBIT C
BILL OF SALE
Village Transport Corp. ("Seller"), a Delaware corporation
having an office at 6300 Wilson Mills Road, Mayfield Village, Ohio 44143, in
consideration of the sum of one dollar ($1.00), and other good and valuable
consideration, to it in hand paid by ACME Acquisition Corporation, an Ohio
corporation having an office at 6300 Wilson Mills Road, Mayfield Village, Ohio
44143 ("Buyer"), the receipt and sufficiency of which are hereby acknowledged,
does hereby sell, convey, transfer and deliver unto said Buyer the Canadair
Challenger aircraft, bearing United States Registration No. N711SX, bearing
manufacturer's Serial No. 3007 and equipped with two General Electric CF 34-1A
engines, bearing manufacturer's Serial Numbers 350-105 and 350-104, and all
related avionics, appliances, parts, instruments, equipment and accessories, and
as described in the specifications attached as Exhibit A hereto, and all related
manuals and catalogues (as described in Exhibit A-1 hereto), service bulletins
documents and logbooks (hereinafter collectively referred to as the "Aircraft").
TO HAVE AND TO HOLD, said Aircraft, as described, to Buyer,
its successors and assigns forever.
Seller hereby warrants that, at the time of the sale to be
effected hereby, Seller is the lawful owner of the Aircraft and has good and
lawful right to sell the same to Buyer, as herein provided, and that title to
the Aircraft is free from any lien, charge or encumbrance whatsoever, and that
Seller will defend said title against any and all claims.
Seller further covenants and agrees to execute and deliver, or
cause to be executed and delivered, all such further instruments and documents,
and to do or cause to be done all such acts and things, as may be reasonably
requested by Buyer in order to better convey and confirm
13
14
unto Buyer title to and possession of the Aircraft hereby sold, conveyed,
transferred and delivered.
This Bill of Sale, and the representations, warranties and
covenants herein contained, shall inure to the benefit of Buyer and its
successors and assigns, and shall survive the execution and delivery hereof.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be
signed on this 23rd day of April, 1999.
Village Transport Corp., as Seller
- -------------------------------
By: David M. Schneider
Title: Secretary
14
15
EXHIBIT D
CHALLENGER ADDITIONAL EQUIPMENT, PARTS
AND OTHER PERSONAL PROPERTY
APU:
----
Garrett Turbine Engine Company
Model Number: GTCP 36-100E Total Time: 3197 hrs.
Serial Number: P239C Time Since Hot Section: 758 hrs.
15
16
EXHIBIT E
AIRCRAFT DELIVERY AND ACCEPTANCE RECEIPT
ACME Acquisition Corporation (the "Buyer"), hereby accepts and
acknowledges receipt from Village Transport Corp. (the "Seller"), in accordance
with the terms and conditions of that certain Aircraft Purchase Agreement dated
April _____, 1999, entered into between Buyer and Seller, of one (1) Canadair
Challenger, Serial No. 3077, bearing United States Registration No. N711SX.
The aircraft referred to above was received by the undersigned
Buyer on the date and at the location set forth below.
IN WITNESS WHEREOF, this instrument has been duly signed by
the undersigned, by its duly authorized representative in Wilmington, Delaware
on April 23, 1999 at a.m./p.m. local time.
BUYER
ACME Acquisition Corporation
---------------------------------------
By: Peter B. Lewis
Its: President
16
17
EXHIBIT F
SELLER'S ADDITIONAL REPRESENTATIONS
1. The Challenger was painted in April, 1997, by Bombardier Aviation.
2. The Challenger has 5,063.1 hours of flight.
3. The Challenger left and right engines have 5,063.1 and 4,864.1 hours and
3,165.7 and 2,997.1 cycles, respectively.
17