AIRCRAFT PURCHASE AGREEMENT
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This Aircraft Purchase Agreement is made and entered into as of April
25, 2000, by and between SkyLife Aviation, L.L.C., a Missouri limited liability
company ("Seller") and ARCH Air Medical Service, Inc., a Missouri corporation
("Buyer").
RECITALS
Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, two used Beechcraft King Air airplanes described on Exhibit A hereto
(the "Airplane" or "Airplanes") on the terms and subject to the conditions, and
at a purchase price determined as set forth herein.
AGREEMENT
IT IS THEREFORE AGREED as follows:
Section 1. Sale of Aircraft.
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Seller agrees to sell and Buyer agrees to purchase: one (1) 1979
Beech model B100 aircraft bearing manufacturer's serial number BE-64 and United
States Registration No. N4490M; and one (1) 1977 Beech model B100 aircraft
bearing manufacturer's serial number BE-27 and United States Registration No.
N8TGE, equipped per "Attachment A" (the "Aircraft").
Section 2. Purchase Price.
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The purchase price for the Airplane shall be One Million Six Hundred
Fifty Thousand Dollars ($1,650,000.00) which shall be paid as provided herein.
Section 3. Closing.
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At the Closing, the following deliveries shall be made:
(a) Deliveries by Seller. Seller shall deliver the Airplanes to
Buyer and Buyer shall accept such delivery at Seller's facility at Spirit of St.
Louis Airport in St. Louis, Missouri. Delivery of each Airplane shall be deemed
to occur upon delivery to Buyer of a duly executed U. S. Federal Aviation
Administration ("FAA") Bill of Sale conveying good title to the Airplane, free
and clear of any liens or encumbrances. Delivery of the Airplanes shall be
accompanied by delivery of all log books, flight manuals, maintenance records,
component cards and other records pertaining to the operation and maintenance of
the Airplanes that Seller has in its position. Seller shall also deliver a
signed release or other evidence of release of all liens presently outstanding
on the Airplanes.
(b) Deliveries by Buyer. At the Closing, and concurrent with the
delivery of the Airplanes to Buyer, Buyer shall pay the purchase price to Seller
by wire transfer in immediately available funds to Seller's bank account
identified by Seller to Buyer in writing at least one day before the Closing.
Section 4. Representations and Warranties of Seller.
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Seller represents and warrants to Buyer as follows:
(a) Airworthy Condition. The Airplanes have been maintained in
airworthy condition in accordance with maintenance requirements of the FAA and
the manufacturer of the Airplanes. Except for such representation and warranty,
Buyer agrees to accept the Aircraft in an "as is, where is" condition, and
Seller makes no warranty of merchantability of the Aircraft and/or its
equipment. Buyer understands that Seller is neither the manufacturer nor has
Seller been the sole owner of the Aircraft and makes no warranties whatsoever,
either expressed or implied, with regard to the Aircraft, accessories, log
books, fitness for any particular purpose, other than Seller's warranty that it
will deliver title to the Aircraft free and clear of all encumbrances.
(b) Good Title. Seller is the lawful owner of the Airplanes and
at the Closing, Seller's sale to the Buyer shall transfer good and lawful title
to the Airplanes, free and clear of all liens, encumbrances and charges, other
than liens for taxes not yet delinquent and any liens, charges or encumbrances
arising out of or in connection with any act or omission of Buyer or any person
claiming by or through or under Buyer.
(c) Legal Status; Authority. Seller is a limited liability
company, duly organized, validly existing and in good standing under the laws of
the State of Missouri. Seller has full power and authority to transfer its
right, title and interest in the Airplanes to Buyer. This Agreement has been
duly authorized, executed and delivered by Seller and constitutes the legal,
valid and binding obligation of Seller, enforceable against Seller in accordance
with its terms, subject to bankruptcy law and equitable principals. This
Agreement does not, and the performance of this Agreement will not, violate any
law or regulation, and will not result in any breach of any agreement to which
Seller is a party or by which the Airplanes are bound.
(d) To Seller's knowledge no federal or state approvals will be
necessary to transfer title to Buyer at the Closing other than such approvals
as will have been obtained on or prior to the date of Closing.
Section 5. Representations and Warranties of Buyer.
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Buyer represents and warrants as follows:
Corporate Status; Authority. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California. Buyer has full corporate power and authority to enter into this
Agreement and this Agreement has been duly authorized, executed and delivered by
Buyer and constitutes a legal, valid and binding obligation of Buyer and
enforceable against Buyer in accordance with its terms, subject to bankruptcy
law and equitable principals. This Agreement does not, and the performance of
this Agreement will not, violate any law or regulation, and will not result in
any breach of any agreement to which Buyer is a party or by which the Airplanes
are bound.
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Section 6. Taxes.
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(a) The Purchase Price for the Airplanes does not include any
transfer tax, duty or other similar fee. Buyer agrees to pay any transfer tax,
duty or other similar fee imposed upon or arising out of the sale of the
Airplanes (except with respect to income taxes on the net income of Seller), and
agrees to reimburse Seller and hold Seller harmless from and against any such
tax, duty or other similar sales fee paid or payable by Seller.
(b) Any and all taxes levied or assessed by any taxing authority
in respect to ownership of the Airplane, including, but not limited to, any and
all ad valorem property taxes, based upon ownership prior to the Closing Date
shall be paid by Seller and all such taxes assessed or levied based upon
ownership after the Closing Date shall be paid by Buyer. Nothing in this
subsection (b) shall limit the right of Buyer and Seller to contest in good
faith and by appropriate legal proceedings any such taxes levied or assessed by
any taxing authority in respect to ownership of the Airplane.
Section 7. Risk of Loss; Insurance.
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(a) Risk of Loss Prior to Closing. If any loss, damage, or
destruction of any kind occurs with respect to either Airplane prior to the
Closing, Seller may with the reasonable consent of the Buyer either (i)
terminate this Agreement [with respect to that Airplane], in which case, neither
party shall have any liability or other obligation to the other under this
Agreement, or (ii) repair or cause to be repaired the loss, damage or
destruction to the Airplane, in order to restore the Airplane to substantially
the same condition as existed immediately prior to such loss, damage or
destruction, prior to the time of delivery of the Airplane on the Closing and,
if such repairs cannot be completed prior to such time, Seller may delay the
Closing for up to and including 15 days, or, with Buyer's prior written consent,
for a longer period. In the event the Closing [with respect to the sale of the
damaged Airplane] is delayed longer than 15 days, and Buyer does not consent in
writing to such extension, Buyer and Seller each shall have the right to
terminate this Agreement [with respect to the sale of that Airplane] by giving
written notice of termination to the other and, upon Seller's receipt of such
written notice from Buyer, or upon Seller's giving of such written notice to
Buyer, neither party shall have any liability or obligation to the other under
this Agreement [with respect to the sale of that Airplane]. Seller shall be
responsible for and shall protect, defend, indemnify and hold harmless Buyer
from and against any and all losses, claims, liabilities, damages, taxes,
expenses, actions and causes of action, including but not limited to reasonable
attorney's fees, arising out of or in connection with the use, ownership or
operation of the Airplanes, prior to the Closing, including liability to third
parties for property damages, personal injury or death.
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(b) Risk of Loss Upon Closing. Exclusive care, custody and
control of the Airplanes, and all risk of loss, damage or destruction to the
Airplanes from any cause whatsoever, including risks of damage to or loss or
destruction of the Airplanes and liability to third parties for property
damages, personal injury or death (excluding any liability arising out of a
condition or defect existing in an Airplane at the time of delivery thereof to
Buyer hereunder, but warranted against in Section 4(a)) shall pass to and be
assumed by Buyer upon delivery of the Airplanes to Buyer hereunder. Upon
delivery of the Airplanes in accordance with the provisions of Section 3 and
effective as of the Closing, Buyer shall assume all responsibility in connection
with the Airplanes and all risks incident to ownership, maintenance, repair, use
and modification thereof and is responsible for and shall protect, defend,
indemnify and hold harmless Seller from and against any and all losses, claims,
liabilities, damages, taxes, expenses, actions and causes of action, including
but not limited to reasonable attorney's fees, arising out of the use, ownership
or operation of the Airplanes from and after the Closing, including damage to or
destruction or loss of the Airplanes and liability to third parties for property
damage, personal injury or death.
Section 8. Miscellaneous.
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(a) Assignment of Warranties. Effective as of the time of
delivery of the Airplane to, and acceptance thereof by, Buyer on the Closing
Date, Seller hereby assigns to Buyer, without representation, warranty or
recourse of any kind, any warranties, if any, to the extent assignable, of
manufacturers and maintenance and overhaul agencies related to the Airplanes and
will give notice of such assignment to any such manufacturers and maintenance
and overhaul agencies as Buyer may reasonably request.
(b) Notice. All notices required or permitted hereunder shall be
in writing and shall be either personally delivered or telecopied, telexed or
sent by a courier service or mailed by registered or certified mail (return
receipt requested), postage prepaid, addressed as follows:
Buyer: ARCH Air Medical Service, Inc.
c/o Mercy Air Service, Inc.
1670 Miro Way
Rialto, CA 929376
Attention: President
Fax No.: (909)357-1009
Tel. No.: (909)437-7009
with copies to: Air Methods Corporation
7301 S. Peoria
Englewood, CO 80112
Attention: President and CEO
Fax No.: (303)792-4780
Tel. No.: (303)792-7412
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and to
Davis, Graham & Stubbs LLP
370 17th Street, Suite 4700
Denver, CO 80202
Attention: Lester R. Woodward, Esq.
Fax No.: (303)893-1379
Tel. No.: (303)892-9400
Seller: SkyLife Aviation, L.L.C.
2207 Scott Avenue
St. Louis, MO 63103
Attention: Robert F. Stumpf
Fax No.: (314)621-6422
Tel. No.: (314)621-1030
with a copy to: Lashly & Baer, P.C.
714 Locust Street
St. Louis, MO 63101
Attention: Charles E. Valier
Fax No.: (314)621-6844
Tel. No.: (314)621-2939
or at such other address for a party hereto as such party gives to the other
from time to time through proper notice. Any such notice shall be effective and
shall be deemed to have been given when received at the addresses set forth
above, as such addresses are modified as set forth above.
(c) Assignment. This Agreement and the rights and obligations
created hereunder, shall not be assignable or delegable by either party without
the prior written consent of the other, which consent shall not be unreasonably
withheld.
(d) Nonwaiver; Remedies Cumulative. No covenant or condition of
this Agreement can be waived except by the written consent of the party to be
charged with such waiver. No waiver by Seller or Buyer of any event of default
hereunder shall in any way be, or be construed to be, a waiver of any other or
subsequent event of default. Forbearance or indulgence by Seller or Buyer in
any regard whatsoever shall not constitute a waiver of the covenant or condition
to be performed by Seller or Buyer to which such forbearance or indulgence may
relate, and until complete performance by Seller or Buyer of such covenant or
condition or the written waiver thereof by Seller or Buyer, Seller or Buyer
shall be entitled to invoke any remedy available to Seller or Buyer under this
Agreement or by law or in equity or otherwise despite such forbearance or
indulgence.
(e) Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Missouri.
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(f) Severability. Any provision of this Agreement which may be
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability in such jurisdiction only,
without invalidating the remaining provisions hereof in such jurisdiction and
without invalidating any of the provisions hereof in any other jurisdiction. To
the extent permitted by applicable law, the parties hereto hereby waive any
provisions of law which render any provisions hereof prohibited or unenforceable
in any respect.
(g) Further Assurances. Seller and Buyer will promptly, at any
time and from time to time, execute and deliver to each other such further
instruments and documents, and take such further action, as Seller or Buyer, as
the case may be, may from time to time reasonably request and which are
necessary to carry out this Agreement and to establish and protect the rights,
interests, and remedies created in favor of Seller or Buyer.
(h) Headings. The titles of the sections of this Agreement have
been inserted for the convenience of the parties, and are not an aid in the
interpretation of this Agreement.
(i) Written Changes Only. This Agreement, including the Schedule
and Exhibits hereto, embodies the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, written or oral, relating to such subject
matter. No term or provision of this Agreement may be changed or waived orally,
but only by an instrument in writing signed by the parties hereto.
(j) Broker. Buyer hereby represents to Seller that it has not
directly or indirectly employed or otherwise procured any broker in connection
with the purchase of the Airplane hereunder. Seller hereby represents to Buyer
that it has not directly or indirectly employed or otherwise procured any broker
other than Stifel, Nicolaus & Company, Incorporated in connection with the sale
of the Airplane, and Seller agrees that all compensation of any kind payable to
any such party is the sole responsibility of Seller.
Section 9. Counterparts.
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This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered (which delivery may be made by facsimile) shall be deemed
to be an original and all of which taken together shall constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals.
BUYER:
ARCH Air Medical Service, Inc.
By: /s/ David L. Dolstein
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Title: President
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SELLER:
SKYLIFE AVIATION, L.L.C.
By: /s/ James R. Kimmey, M.D.
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Title: Designated Officer
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"ATTACHMENT A"
TO AIRCRAFT PURCHASE AGREEMENT
MADE AND ENTERED INTO AS APRIL ___, 2000
AIRCRAFT
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1979 Beech B100
S/N: BE-64 REG: N4490M
1979 Beech B100
S/N: BE-27 REG: N8THE
Both with aircraft medical interiors
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