AIRCRAFT PURCHASE AGREEMENT
AGREEMENT dated as of October 10, 1997 between Ivanhoe
Capital Aviation L.L.C., a Delaware limited liability company
(the "Seller"), and Golden Nugget Aviation Corp., a Nevada
corporation (the "Buyer").
1.Definitions. (a) Each of the following terms, when
capitalized, is used herein with the meaning set forth in the
Section or other part of this Agreement identified opposite such
term below:
Broker 14(a)
Buyer Preamble
Delivery Date 4(a)
Deposit 3(b)
Escrow Agent 3(b)
Event of Loss 11
Force Majeure Event 11(a)
Outside Date 4(a)
Purchase Price 3(a)
Seller Preamble
Specified Discrepancy 5(b)
Warranties 4(e)
(b) Each of the following terms, when capitalized, is
used herein with the meaning set forth below:
"Aircraft" means, collectively, the Airframe with the
Engines installed thereon and the Aircraft Documents.
"Aircraft Documents" means the log books, system and
component manuals, flight and operation manuals, checklists and
other records and documents pertaining to the operation and
maintenance of the Aircraft, including without limitation any FAA
certificates (including without limitation the Certificate of
Airworthiness with respect to the Aircraft, which will be on
board the Aircraft at delivery to the Buyer), all service tags
relating to components on board the Aircraft and all records
required by applicable FAA regulations to be maintained by the
operator of the Aircraft.
"Airframe" means one used Falcon DA2000 aircraft bearing
manufacturer's serial number 011 and FAA registration number
N101NS, together with all appliances, parts, instruments,
appurtenances, accessories, furnishings or other equipment or
property installed on or attached to such airframe, including
without limitation the items listed on Exhibit A. The "Airframe"
does not include the Engines (or any other engines) installed
thereon.
EXHIBIT 10.12
"Dollars" and "$" refer to United States Dollars.
"Engine" means each of two used AlliedSignal CFE738-1-1B
aircraft engines bearing manufacturer's serial numbers 105126 and
105127 (or another engine substituted therefor pursuant to
Section 11), together in each case with all appliances, parts,
instruments, appurtenances, accessories, furnishings or other
equipment or property installed on or attached to such engine
(each of which engines has 750 or more rated takeoff horsepower
or the equivalent thereof).
"FAA" means the United States Federal Aviation
Administration.
"FAAct" means Part A of Subtitle VII of the United States
Transportation Code (49 U.S.C. pp 40101 et. seq. ), as amended
from time to time.
2.Purchase and Sale. On the terms and subject to the
conditions set forth in this Agreement, the Seller will sell and
deliver to the Buyer, and the Buyer will purchase and accept from
the Seller, the Aircraft.
3.Purchase Price and Payment Terms. (a) The purchase
price for the Aircraft will be Nineteen Million, Three Hundred
Thousand Dollars ($19,300,000) (the "Purchase Price"). The
Purchase Price will be paid to the Seller on the Delivery Date.
All payments will be paid in Dollars and immediately available
funds, and will be made by wire transfer to an account of the
Seller designated by notice to the Buyer or in another manner
specified by the Seller by notice to the Buyer
(b) Not later than October 14, 1997, the Buyer will
deposit with AIC Title Service, Oklahoma City, Oklahoma (the
"Escrow Agent") $1,900,000 as a deposit (the "Deposit") against
full payment of the Purchase Price at delivery of the Aircraft.
If the Buyer fails to make the Deposit when due, the Buyer will
have materially breached this Agreement and the Seller may
terminate its obligation to sell the Aircraft to the Buyer by
notice to the Buyer (which termination will be without prejudice
to the Seller's remedies for the Buyer's breach of its
obligations hereunder, including the obligation to purchase the
Aircraft). If the Buyer repudiates this Agreement or fails to
accept the Aircraft and pay the Purchase Price on the Delivery
Date, notwithstanding the satisfaction or waiver of each of the
conditions set forth in Section 6(b), the Escrow Agent will pay
the entire Deposit over to the Seller, and thereafter the Seller
may apply the Deposit at any time (or in part from time to time)
against the Seller's damages for the Buyer's breach of this
Agreement, and may retain the Deposit until the Seller has
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ascertained the amount of such damages by selling the Aircraft to
another party or otherwise. If at the end of the Outside Date the
Seller has failed to deliver the Aircraft to the Buyer,
notwithstanding the satisfaction or waiver of each of the
conditions set forth in Section 6(a), the Escrow Agent will
return the Deposit to the Buyer and the Buyer will have such
other rights and remedies as it may have at law or in equity as a
result of the Seller's breach of its obligations hereunder. Buyer
and Seller will each bear one-half of the Escrow Agent's fee.
▇.▇▇▇▇▇▇▇▇. (a) The Seller will deliver the Aircraft to
the Buyer in Las Vegas, Nevada or another delivery location in
the United States designated by the Seller and reasonably
acceptable to the Buyer, against payment of the Purchase Price,
and the Buyer will accept delivery of the Aircraft from the
Seller at the delivery location, on a business day mutually
agreed upon by the Seller and the Buyer (the "Delivery Date"),
which will be on or about October 21, 1997 and in any event not
later than the Outside Date. The "Outside Date" means October 31,
1997 or if, as a result of a Force Majeure Event referred to in
Section 11(a), the Seller is not able to deliver the Aircraft
until after October 31, 1997, such later date (but not, in any
event, later than December 1, 1997) when the Seller is able to
deliver the Aircraft.
(b) On the Delivery Date the Seller will execute and
deliver to the Buyer, against payment of the Purchase Price:
(i) a long-form ▇▇▇▇ of sale in substantially the form of
Exhibit B and (ii) an FAA ▇▇▇▇ of sale (FAA Form 8050-2)
identifying the Aircraft, in each case naming as transferee the
Buyer or another person designated by the Buyer. On the Delivery
Date the Seller will deliver to the Buyer, with the Aircraft, the
FAA Certificate of Airworthiness with respect to the Aircraft.
(c) On the Delivery Date, upon tender of delivery of
the Aircraft, the Buyer will deliver to the Seller a duly
executed certificate of acceptance in substantially the form of
Exhibit C.
(d) Upon delivery of the Aircraft, payment of the
Purchase Price, and delivery of the documents described in
subsections (b) and (c) above, title to the Aircraft and the risk
of loss thereof will pass from the Seller to the Buyer.
(e) The Seller hereby assigns to the Buyer, effective
upon delivery of the Aircraft, payment of the Purchase Price and
delivery of the documents described in subsections (b) and (c)
above, all of the Seller's right, title and interest in, to and
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under all warranties, guaranties, indemnities and product
agreements of manufacturers of the Aircraft, any Engine included
therein or any part or component thereof ("Warranties"), but
only to the extent that such Warranties are in effect and are
assignable to the Buyer without cost to the Seller (other than
any cost paid by the Buyer in advance, at the Buyer's option).
The Seller shall enforce on the Buyer's behalf such Warranties as
are not assignable to the Buyer, but the Buyer shall pay any
costs and expenses incurred by the Seller in rendering such
assistance.
▇.▇▇▇▇▇▇▇▇ Condition; Inspection. (a) At delivery:
(i) the Aircraft will be airworthy and clean in accordance with
normal standards for executive aircraft;
(ii) the Aircraft will include all parts and equipment
required for normal operation by the Seller and such parts and
equipment shall be functional per manufacturer's specifications;
(iii) each Engine will be installed on the Aircraft and
functional per manufacturer's specifications;
(iv) the Aircraft and each Engine will be in the same
condition as when last inspected by the Buyer prior to the date
of this Agreement, ordinary wear and tear excepted;
(v) all FAA Airworthiness Directives and Mandatory Service
Bulletins relating to the Aircraft and requiring compliance
before the Delivery Date will have been complied with, and the
Aircraft will be current with all required inspections (if any);
(vi) the Aircraft will comply with applicable FAA
requirements for continued operation under Part 91 of the United
States Federal Aviation Regulations;
(vii) the Aircraft shall have no record of accidents or
damage;
(viii) all discrepancies that affect the airworthiness, or
otherwise materially affect the value or utility of the Aircraft,
shall have been corrected at Seller's expense or (only in the
case of such discrepancies that do not affect the airworthiness
of the Aircraft) the Seller shall have agreed in writing to
remedy such discrepancies at its expense within one year after
the Delivery Date;
(ix) the Aircraft shall have no evidence of corrosion, other
than small amounts of surface corrosion typically found on used
aircraft;
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(x) the Seller shall have maintained the Aircraft Documents
as required by applicable law and applicable FAA regulations, and
the information therein shall be true, correct and complete in
all material respects; and
(xi) the information set forth on Exhibit A shall be true
and correct in all material respects and the Airframe shall have
not more than 1,050 flight hours since original delivery from the
manufacturer (excluding flight hours during the Buyer's pre-
purchase inspection and en route from Little Rock, Arkansas to
the delivery location).
(b) The Seller will permit the Buyer to conduct, at
the Buyer's expense, a customary pre-purchase inspection of the
Aircraft at the manufacturer's facility in Little Rock, Arkansas.
The Buyer will cause such inspection to be completed as
expeditiously as reasonably possible, and in any event not later
than October 24, 1997. The Buyer will describe to the Seller in
writing and in reasonable detail each discrepancy that, if
unremedied, would cause the Aircraft not to be in the condition
required by subsection (a) above as promptly as practicable, and
in any event not later than the first business day after
completion of the pre-purchase inspection (each such discrepancy
so described by the Buyer to the Seller is referred to herein as
a "Specified Discrepancy").
6.Conditions Precedent. (a) The Seller's obligation to
sell the Aircraft and to deliver the Aircraft to the Buyer is
subject to satisfaction of the following conditions precedent:
(i) payment of the Purchase Price, (ii) tender of delivery of the
document to be delivered by the Buyer pursuant to Section 4(c)
and (iii) the fact that the representations and warranties of the
Buyer set forth in this Agreement are true and correct in all
respects on the Delivery Date and that the Buyer has performed
all of its covenants and agreements hereunder to be performed on
or before the Delivery Date.
(b) The Buyer's obligation to purchase the Aircraft
and to pay the Purchase Price to the Seller is subject to
satisfaction of the following conditions precedent: (i) tender of
delivery of the Aircraft in compliance with this Agreement,
(ii) tender of delivery of the documents to be delivered by the
Seller pursuant to Section 4(b), (iii) the fact that the
representations and warranties of the Seller set forth in this
Agreement are true and correct in all respects on the Delivery
Date and that the Seller has performed all of its covenants and
agreements hereunder to be performed on or before the Delivery
Date and (iv) the fact that each Specified Discrepancy has either
has been corrected or (only in the case of Specified
Discrepancies that do not affect the airworthiness of the
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Aircraft) the Seller has agreed in writing to remedy such
Specified Discrepancy at its expense within one year after the
Delivery Date. The Buyer will have a reasonable opportunity to
confirm satisfaction of the conditions precedent, including a
"walk-around" visual inspection of the Aircraft at the delivery
location.
7.Representations of the Seller. The Seller represents
and warrants to the Buyer that:
(a) The Seller is a limited liability company duly
formed, validly existing and in good standing under the laws of
the State of Delaware, and has all company power and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and to perform
its obligations hereunder.
(b) The execution, delivery and performance by the
Seller of this Agreement are within the Seller's company power,
have been duly authorized by all necessary company action,
require no action by or in respect of any governmental body,
agency or official and do not contravene applicable law or
regulation, the certificate of formation or limited liability
company agreement of the Seller, or any agreement or other
instrument binding upon the Seller.
(c) This Agreement constitutes a valid and binding
agreement of the Seller, enforceable against the Seller in
accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium, reorganization and similar laws affecting
creditors' rights generally and to general equitable principles,
whether considered in an action at law or in equity.
(d) There is no action, suit or proceeding pending
against, or to the knowledge of the Seller threatened against or
affecting, the Seller before any court or arbitrator or any
governmental body, agency or official which, if adversely
determined, would adversely affect the Seller's ability to
perform its obligations hereunder.
(e) The Seller is the sole owner of the Aircraft and
on the Delivery Date the Seller will have, and will transfer to
the Buyer, good and marketable title to the Aircraft, free and
clear of all liens, security interests, charges and encumbrances,
other than liens, security interests, charges and encumbrances
arising from acts or omissions of the Buyer.
8.Representations of the Buyer. The Buyer represents and
warrants to the Buyer that:
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(a) The Buyer is a corporation duly incorporated,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate power and
all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted and
to perform its obligations hereunder.
(b) The Buyer (or, if the Buyer has designated another
person or entity to be named as transferee in the documents to be
delivered by the Seller on the Delivery Date, such other person
or entity) is a "citizen of the United States" within the meaning
of the FAAct.
(c) The execution, delivery and performance by the
Buyer of this Agreement are within the Buyer's corporate power,
have been duly authorized by all necessary corporate action,
require no action by or in respect of any governmental body,
agency or official and do not contravene applicable law or
regulation, the articles of incorporation or by-laws of the
Buyer, or any agreement or other instrument binding upon the
Buyer.
(d) This Agreement constitutes a valid and binding
agreement of the Buyer, enforceable against the Buyer in
accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium, reorganization and similar laws affecting
creditors' rights generally and to general equitable principles,
whether considered in an action at law or in equity.
(e) There is no action, suit or proceeding pending
against, or to the knowledge of the Buyer threatened against or
affecting, the Buyer before any court or arbitrator or any
governmental body, agency or official which, if adversely
determined, would adversely affect the Buyer's ability to perform
its obligations hereunder.
▇.▇▇ OTHER WARRANTIES BY THE SELLER. (A) THE AIRCRAFT AND
ALL OTHER ITEMS DELIVERED BY THE SELLER TO THE BUYER HEREUNDER
WILL BE DELIVERED TO THE BUYER "AS IS." THE EXPRESS WARRANTIES OF
THE SELLER SET FORTH IN SECTION 7 OF THIS AGREEMENT ARE EXCLUSIVE
AND IN LIEU OF ALL OTHER WARRANTIES BY THE SELLER, WHETHER
WRITTEN, ORAL OR IMPLIED. THE SELLER WILL NOT BE DEEMED TO HAVE
MADE ANY REPRESENTATION OR WARRANTY AS TO THE MERCHANTABILITY,
FITNESS, DESIGN OR CONDITION OF, OR AS TO THE QUALITY OF THE
MATERIAL OR WORKMANSHIP IN, THE AIRCRAFT OR ANY OTHER ITEM. THE
SELLER DISCLAIMS AND THE BUYER WAIVES ALL WARRANTIES, GUARANTIES
AND LIABILITIES OF THE SELLER, EXPRESS OR IMPLIED, ARISING BY
OPERATION OF LAW. IN NO EVENT WILL THE SELLER BE LIABLE FOR (i)
INJURIES TO PERSONS OR PROPERTY, (ii) INCIDENTAL OR CONSEQUENTIAL
DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS,
REVENUE, BUSINESS OR OPPORTUNITY) OR (iii) ANY OTHER LOSS OR
DAMAGE WHATSOEVER AFTER DELIVERY OF THE AIRCRAFT TO THE BUYER
(EXCEPT AS SET FORTH IN SECTION 12), IT BEING AGREED AND
UNDERSTOOD THAT ALL SUCH RISKS ARE TO BE BORNE BY THE BUYER AFTER
DELIVERY.
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(B) All of the following descriptions of the Aircraft
are expressly excluded from, and are not a part of this
Agreement: (i) any description not set forth in this Agreement
(including without limitation any description included in the
Seller's or any broker's sales material, any sample provided by
the Seller or any broker or any description provided by the
Buyer) and (ii) any description in this Agreement or elsewhere
stated as an estimate or an approximation, referred to as not
guaranteed or constituting a general description of quality
(which is understood to be an expression of the Seller's opinion
only). None of such descriptions are warranted, and the Buyer
will not rely on any such description in entering into or
performing this Agreement.
10. Registration. The Buyer will cause the Aircraft to
be registered in its name with the FAA on the Delivery Date.
11. Force Majeure; Casualty Before Delivery. (a) The
Seller will not be responsible for any failure or delay in
performing its obligations hereunder (including without
limitation its obligation to sell and deliver the Aircraft) to
the extent arising out of causes beyond the Seller's control,
including without limitation: acts of God, war, armed
hostilities, riots, fires, floods, storms, earthquakes,
explosions, accidents, governmental acts or failures to act
(whether or not under legal authority), strikes or labor troubles
or failure or delay in transportation (a "Force Majeure Event").
If, as a result of a Force Majeure Event, the Seller is not able
to deliver the Aircraft until after the Outside Date, the Deposit
will be returned by the Escrow Agent to the Buyer and neither the
Buyer not the Seller will have any further obligations hereunder.
(b) If, before the Delivery Date, there is an Event of
Loss: (i) with respect to the Airframe, the Deposit will be
returned by the Escrow Agent to the Buyer and neither the Buyer
nor the Seller will have any further obligations hereunder or
(ii) with respect to an Engine, the Seller will attempt to
substitute therefor another engine of the same make and model
that has a value, utility, modification status and remaining
useful life equal to or better than the Engine that suffered an
Event of Loss.
"Event of Loss" with respect to the Airframe or any
Engine means any loss, damage or destruction that renders the
Airframe or such Engine (as the case may be) unfit for normal use
or such that repairs are not commercially feasible, or any
condemnation, confiscation, appropriation or seizure of the
Airframe or such Engine (as the case may be).
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12. Title Warranty. The Seller will indemnify and hold
harmless the Buyer from and against all claims, damages, losses,
liabilities and judgments (including reasonable attorneys' fees
and expenses) arising out of the breach of the representation and
warranty of title set forth in Section 7(e).
13. Taxes. The Buyer will be solely responsible for
the payment of all federal, state and local sales, use, value
added, transfer, property or other taxes, assessments, charges,
fees or duties which may be applicable to the purchase, sale or
delivery of the Aircraft or payment therefor (other than taxes
levied upon the Seller's net income, or upon the Seller's gross
receipts, in lieu of taxes imposed upon net income), whether
levied against or payable by the Buyer or the Seller, and will
indemnify and hold harmless the Seller against any such tax.
14. Miscellaneous. (a) Brokerage. Seller will be
responsible for the fees of Peerless Aviation Services Ltd. (the
"Broker") in connection with the sale of the Aircraft by the
Seller to the Buyer. Each of the Buyer and the Seller represents
and warrants to the other that the negotiations relative to this
Agreement and the transaction contemplated hereby have been
carried on in such manner as not to give rise to any valid claims
against either of the parties hereto for brokerage commission,
finder's fees, or any other like payment to any person (other
than the Broker). In the event that a claim is made, the party
responsible for the breach of this paragraph will indemnify the
other for any damages, including reasonable attorneys' fees,
arising therefrom.
(b) Notices. All notices and communications hereunder
will be in writing (including facsimile transmission or similar
writing) and will be given to the following address:
If to the Seller
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇ & Gates P.L.L.C.
Two Union Square
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
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If to the Buyer
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to
Mirage Resorts, Incorporated
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
or such other address or telecopier number as such party may
hereafter specify for the purpose by notice to the other. Each
such notice, request or other communication will be effective
when delivered at the address specified in this Section. Failure
to provide a copy of any notice to a person that is not a party
to this Agreement will not affect the effectiveness of the notice
to such party.
(c) Survival. Each of the representations, warranties
and obligations of the Buyer and the Seller will survive the
Delivery Date, except as otherwise provided herein or in any
other document delivered on the Delivery Date.
(d) Amendment and Waivers. The provisions of this
Agreement may not be waived, modified or amended except by an
instrument in writing signed by both parties hereto. No failure
or delay on the part of either party in exercising any of its
powers or rights hereunder, nor any partial or single exercise
thereof, will constitute a waiver thereof or will preclude any
other or future exercise of any other power or right.
(e) Governing Law; Submission to Jurisdiction. This
Agreement will be governed by and construed in accordance with
the laws of the State of Washington. The parties hereby submit to
the nonexclusive jurisdiction of the United States District Court
for the Western District of Washington and of any Washington
state court sitting in King County for purposes of all legal
proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Each party irrevocably waives,
to the fullest extent permitted by law, any objection which it
may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an
inconvenient forum.
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(f) Successors and Assigns. This Agreement will inure
to the benefit of and be binding upon each of the parties hereto
and their respective successors, but may not be assigned by
either party without the prior written consent of the other
party, in such party's sole discretion.
(g) Headings and Captions. The headings and captions
in this Agreement are included for convenience of reference only
and will be ignored in the construction or interpretation hereof.
(h) Counterparts; Integration. This Agreement may be
signed in any number of counterparts, by manual or facsimile
signature, each of which counterparts will be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement (including the Exhibits
hereto) and the documents to be delivered hereunder on the
Delivery Date constitute the entire agreement and understanding
among the parties hereto and supersede any and all prior
agreements and understandings, oral or written, relating to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above.
GOLDEN NUGGET AVIATION CORP.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
IVANHOE CAPITAL AVIATION L.L.C.
By /s/ ▇.▇. ▇▇▇▇▇
Title: Manager
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